Only One President Has Defied the Courts

It’s not Trump.

Or, I should say, it’s not Trump yet. However, given this administration’s…broad view of executive power, it’s worth looking at how past presidents have interacted with a court system that opposed them. Most presidents, as you would expect, reacted to an unfavorable court ruling by obeying the courts’ directive, with only a few real exceptions.

From history class, I recalled that Chief Justice John Marshall had ruled against Andrew Jackson’s interest in dealing with the Native American populations. But upon further inspection, it appears that despite the famous quote of Jackson’s “John Marshall has made his decision; now let him enforce it!”, the ruling in Worcester v Georgia was actually not a constitutional crisis. The quote itself seems apocryphal.

Marshall ruled that Georgia did not have the ability to regulate the interaction between Georgians and the Cherokee; instead, only the federal government has that power. Georgia complied and they freed the plaintiff, Worcester, eventually, but Andrew Jackson had nothing to enforce, since the federal government was not a party to the suit. Moreover, the Indian Removal Act had already been passed, and so the removal of native tribes on the Trail of Tears continued, with Marshall’s ruling changing nothing.

In 1942, German sabateurs were captured on American soil. President Franklin Delano Roosevelt issued an executive order declaring they would be tried by a military tribunal, and they appealed that the President could not try them under a military tribunal, and they petitioned for a writ of habeas corpus under the 1866 decision Ex parte Milligan which stated that civilians in the U.S. could not be denied habeas corpus and their right to trial. In Ex parte Quirin, the Supreme Court ruled against the Germans, siding with the President. Pretty straightforward, except according to Newt Gingrich (couldn’t find it anywhere else), Roosevelt threatened the Court that he would ignore their ruling and refuse to issue a writ of habeas corpus if the justices decided against him. So not a constitutional crisis, just the threat of one.

In 1952 there was a famous case of Truman seizing control of steel mills during the Korean War. In Youngstown Sheet & Tube Co. v. Sawyerthe Supreme Court ruled against Truman, stating that the powers the president claimed to have under the Taft-Hartley Act were not present. One of the concurring opinions was that of Justice Robert Jackson who divided presidential power into three categories: (1) Powers explicitly granted or implied by Congress, (2) Powers that Congress has not stated a position on, and (3) Powers that Congress has explicitly or implicitly rejected from giving to the president. This has become the standard way of analyzing presidential versus congressional power. Of course, at the conclusion of the case, Truman immediately returned control of the steel mills to their owners. Again, the Court’s decision was respected.

Perhaps the most famous case of executive action gone overboard is the Watergate scandal. A special prosecutor obtained a subpoena ordering Nixon to turn over certain conversations he had recorded. Nixon argued that the special prosecutor had not proven the tapes were important to the investigation, that the courts did not have jurisdiction over this “internal” executive branch matter, and that the President has absolute executive privilege of communications between high government officials. The Supreme Court ruled unanimously against him on all three counts. However, in United States v Nixon, Nixon did comply and turn over the tapes, despite it likely ending his presidency. This was a major moment, as I detailed in “Against Trump“, several months ago. If he had refused, would the court have been able to hold him in contempt and have U.S. Marshals arrest him? Technically, the marshals are part of the Justice Department, so that seems problematic, as the Justice Department answers to the President. Regardless, we have gone through almost all the famous cases, and the President has basically never gone against an explicit court decision.

Going further back than any of these presidents, it’s possible that Jefferson was the first to have actually defied the courts. In 1807, Thomas Jefferson signed the Embargo Act which was meant to punish Britain and France during the Napoleonic Wars for their attacks on American shipping. It was a pretty miserable failure, and apparently in Gilchrist vs Collector of Charleston, Justice William Johnson ruled against the government’s authority (although this was a congressional action, not just executive action). The New Yorker says that despite this ruling, the policy remained in place until 1809, but it was so early on in American history that I’m having trouble finding any sources to validate that claim.

But we can do better than an alleged delayed repeal of an unconstitutional act of Congress from 200 years ago! The best example of defiance on record belongs to Abraham Lincoln in the aftermath of Ex parte Merryman, and it is quite unrepentant.

In 1861, Chief Justice Taney (in the capacity of a Circuit Court) ruled that President Abraham Lincoln had unconstitutionally suspended the right to the writ of habeas corpus during the Civil War. The court ruled only Congress has that power. Lincoln and the army defied the order. Their argument was hilariously reminiscent of Trump, stating that Taney had not actually ordered them to release Merryman. Of course, they didn’t stop there as several newspaper owners and editors were also detained by the federal government, as well as eventually the Baltimore police chief, the Baltimore mayor, and even 30 members of the state legislature! A Maryland state judge was not only arrested, but beaten unconscious by federal troops, and then held without being charged for six months.

Even after the judge’s ruling, Congress did not vote to authorize Lincoln’s suspension of habeas corpus, until two years later, in the 1863 Habeas Corpus Suspension Act.

So what are the takeaways? One is that it’s fairly common for presidents to claim they have more power than they do. Obama, for example, lost in the Supreme Court more often than any modern president. It is, however, highly uncommon for presidents to actually defy the courts and continue to use their claimed powers when the courts have ruled against them. If Trump were to do so, by my estimate he would be the only person to do so not during a civil war.

Another interesting point is that in terms of abuse of power and constitutional crises, Trump has done nothing in comparison to Lincoln. Certainly President Lincoln faced extenuating circumstances and a secession crisis that may have made further constitutional crises seem minuscule in comparison. Nonetheless, it seems clear in hindsight that suspending habeas corpus did not improve support for the Union in Maryland, nor was jailing critical members of the press really necessary for victory. Interestingly, according to author Marc Neely, Lincoln was able to get away with these civil liberties abuses because they were largely aimed at three groups with little political power: residents of southern states who had been stuck on the wrong side of the border when war broke out, residents of border states where Lincoln had little political backing anyway, and foreigners.

Of course, if anyone was justified in taking extreme actions on civil liberties, it would be the president during the civil war, but unfortunately, every executive targets politically vulnerable groups and justifies it under national security reasoning (AdamsWilsonFDR, NixonGeorge W. Bush). And as you’d expect, Lincoln’s actions have become a precedent for other abuses. This essay from the Heritage Foundation in 2004 cites Lincoln’s actions in justifying President Bush’s holding of “enemy combatants” without a trial, equating the war on terror with the dangers of the Civil War. Trump has used related rhetoric words to describe threats from immigration. Were he to ignore a court order in the future, it’s virtually certain to be under national security justifications.

Finally, regardless of Lincoln’s accomplishments, we should be very concerned with any presidents who cite Lincoln’s extreme wartime actions as justification for their policies. Lincoln’s circumstances were extreme, and even then I would argue his defiance of court rulings was questionable. Any test for when it is acceptable to suspend civil liberties should be equally extreme in rigor. For example, unless states have actually seceded and there currently exists a newly elected second president of those seceded states, Congress should not even consider curtailing civil liberties, much less the President alone. Nonetheless, the long history of executive overreach by American presidents is likely to continue under Trump. We can only hope it never reaches the unprecedented event of peacetime court defiance.


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Against Hillary: Government Power and Criminal Justice

This is the fifth and final post in my series opposing Hillary Clinton’s candidacy. See the introduction in Part 1 here. Read my opposition to Trump here. Read why you should mathematically vote for a third party here.

Government Power and Criminal Justice

I could go on critiquing many more topics where progressives and libertarians disagree. I’m not sure that would help, so I’ll conclude with this broad section on government power. The fundamental problem we should all have with Hillary Clinton is that she trusts the government to fix every problem we face. But the government has no competition, is slow to change, is slow to respond, and wields a massive police state. Moreover, she also seems to believe government officials should always be trusted to act in the public interest. This seems to govern her position on her mishandling classified information, on her foreign interventions and wars, on healthcare, on government spending, on our right to know that our government is spying on us, and even on the right for people to publish books and movies critical of candidates near elections.

Let’s go back to some points I made in my Against Trump post. As noted by Conor Friedersdorf, the powers of the president apparently include ordering the execution of American citizens with drone strikes (something it seems Hillary Clinton implicitly approved of), detaining Americans suspected of terrorism indefinitely, and spying on millions of Americans with unconstitutional general warrants. Quoting me from the Trump piece:

The enormous amount of statutes on the books means it’s almost certain average people break laws every single day, and so these law enforcement agencies can always find probable cause to arrest you. Then they can stack up charges to force a plea deal, all at the discretion of prosecutors.  As it stands right now, there’s a strong case that the criminal justice system is biased, slow, and unfair, and that it deprives individuals of their rights. But now imagine Trump in charge of the DEA, FBI, intelligence services, and the military.

I later compare Trump to Nixon. My intention was to show that bad presidents have existed and they did terrible damage. Of course, Nixon and Trump in reality have little in common; Nixon was an unlikeable, calculating, politically successful military interventionist who also expanded the size and scope of the regulatory state and federal government while using his power to cover up his aggressive use of the state to fight his political rivals. In other words, he was literally Hillary Clinton in 2016. Imagine putting Richard Nixon in charge of the government today where he would have access to unprecendented surveillance, secret courts, and undeclared wars. This is what we face in a Clinton presidency.

One of the biggest issues in 2016 has been the way police interact with citizens, especially people of color. The trust Hillary Clinton has in the state is simply incompatible with the reality of police abuses. Libertarians, on the other hand, have been talking about police abuse for quite some time. Some of those ideas have been adopted by Clinton including an opposition to mandatory minimums, a prioritization of violent crime over drug crimes, and better police accountability. But Clinton’s positions are mixed at best: harsher sentences in the 90s that helped create the massive prison population we see today weren’t just introduced for drug possession, but also firearm possession. Clinton hasn’t discussed liberalization of firearm ownership, and in fact has called for the suspension of 2nd amendment rights for people placed on the unaccountable and discriminatory terrorist watch list. Her support for the Patriot Act and NSA spying doesn’t really imply a worldview that wants to reduce the police powers of the state. Indeed, her stances in all sorts of areas from undeclared wars to videogames reflect a fundamental belief in civilian deference to state power. Yet as countless examples have shown, including Eric Garner, Sandra Bland, Tamir Rice, and more, deferring to a powerful police state allows harm to come to innocents.

The more power the state has, the more likely there will be confrontations between actors of the state and citizens, and confrontations where there is a power imbalance leads to abuses. Even if we could end racism today, we would not be solving the problem; police that still abuse their power, just against people of all races equally are still immoral. Whether it’s the justice system broadly, government surveillance, regulatory powers, or foreign interventions Hillary Clinton does not offer a fundamental change from simply trusting in the state to fix the problem. Our military has been involved in trillion dollar middle eastern wars over the past 16 years. The justice system is so broken that prosecutors can force 95% of defendants to accept plea bargains. We are outraged at the power the police are wielding without oversight. Yet we are making the problem worse by putting a reincarnation of Richard Nixon into the White House, after she has already brazenly broken the law and gotten away with it. This is simply the wrong answer.


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Picture Credit: Public Domain Image, from National Archives and Records Administration.

Against Trump

In my last post, I made the case for why voting for a main party was far more likely to be a wasted vote than a vote for third party.  I made this argument on the basis of the presidential voting system itself, regardless of any voter’s actual policy preferences.

Nonetheless, if you think Hillary Clinton or Donald Trump have the best policies or ideology, at best my argument should make you indifferent between voting for one of those candidates or leaving it blank (I advocated that one should still vote because of the often overlooked importance of local elections). If you prefer Donald Trump, this post will be my argument for why you shouldn’t. This is not an endorsement of Hillary Clinton, and I hope to write a post against her candidacy next. But there is a third option. I’ve already laid out the case for why it is more practical to vote for a third party rather than waste your vote on the Democrats and Republicans, but this post will show why you should prefer Gary Johnson’s moderate-limited-government-libertarianism to Trump.

Trump: The Troll

The most basic foundation of Trump’s appeal is his fervent opposition to the cultural left, especially the social justice movement and political correctness. In some sense, it doesn’t matter what he says; because he has said ridiculous and outrageous things, he has provided a “safe space” for people who can’t stand the recent domination, real or perceived, of left-wing outrage politics. The cultural left has created a tough situation for their opponents: if you don’t agree with them, they label you as a misogynist, fascist, and white supremacist. The alt-right was a fairly typical human response: they took the insults as a badge of honor.

So what has the left done about Donald Trump? A pretty common response (New York Times, Huffington Post, Vox) is to call him racist! Take a look at these accusations from that Huffington Post article:

  • He attacked Muslim Gold Star parents Khizr Khan and Ghazala Khan. His attack didn’t address their criticism, but suggested Mrs. Khan didn’t speak because of her religion.
  • The Justice Department sued his company in 1973 for not renting to black applicants, and there are stories from employees alleging that he was racist
  • He didn’t condemn David Duke’s support until the next day
  • He questions whether Obama was born in the US
  • He tweeted a picture of him eating a taco bowl to show he loves Hispanics
  • He condoned the attack by his supporters of a Black Lives Matter heckler at a campaign event
  • He claimed Judge Gonzalo Curiel was biased because of his Mexican heritage (Curiel was born in Boston).

These are all awful, insensitive, and moronic actions, but calling them racist or Trump a racist for doing them tries to equate Trump to the level of the KKK. If Trump is fundamentally appealing because he doesn’t back down from outrage tactics, and his supporters are tired of the left screaming that every deviation from progressive orthodoxy is white supremacy, then calling Trump racist is the worst thing you can do. And honestly on many of these issues, Trump is professionally trolling, going just over the line on what is acceptable to draw the outrage.

For example, Trump says he responded to the Khans because they criticized him first, which is true. His response was characterized by an attack on Ghazala Khan and an assumption about her actions due to her faith. This isn’t directly saying that Muslims are inferior, even though there is an implication. But if we just call this out as being “racist”, we really lose out on our argument demonstrating just how awful this episode was for Trump. In fact, Trump supporters can point out that many Islamic countries treat their women poorly and so this is worth questioning. By doing this, we let Trump deflect just how abysmally he managed that political catastrophe; instead, we should be discussing that Trump had no actual response to Khan’s accusations of his unconstitutional policies, and instead had to resort to unfounded assumptions and speculation. He would rather make up things about a family whose son died serving this country because he felt insulted than suck it up and avoid any more fallout. The sheer political incompetence is unspeakable, and the unconstitutionality of many of Trump’s policies remain unanswered.

Many other examples I listed also let Trump get away with absurd positions by jumping immediately to racism. His run-in with the Justice Department is important, but was also over 40 years ago. Was it his fault or his company’s, and does he still have those opinions? The idea of a government agency forcing him into a settlement on allegations of racism is also exactly the conspiracy narrative Trump wants. It seems likely he knows who David Duke is, but I’ve continually overestimated Trump’s abilities in other areas. And just having terrible people endorse you doesn’t automatically make you a bad person too. Trump likely supported the story Obama was born in Kenya because Obama’s father was originally a Kenyan national. It seems pretty easy for Trump supporters to argue he would have demanded a birth certificate of any person whose parentage was outside the US. Calling this racist really lets Trump change the subject to how PC culture is bad, when really we should be focusing on how much of an idiot you have to be to waste so much political capital on a conspiracy theory that was obviously wrong. There were plenty of grounds to criticize Obama’s policies, yet Trump decided to focus on discrediting his legitimacy through a conspiracy theory rather than actual ideas.

Calling it racist when Trump condoned an attack on a protester at his event is sort of the epitome of political correctness gone wrong: it implies that as long he condones violence against protesters of all races at his campaign events, it’s ok. The problem is not the race of the victim, the problem is that he’s condoning violence against people who disagree with him.  His statement against Judge Gonzalo Curiel is almost blatantly racist, as even Paul Ryan states, yet Trump could have easily cited Sonia Sotomayer’s “wise Latina” quote as evidence for why he believed a judge’s ethnicity could influence their opinions. If we get outraged about this, we fuel the perception that social justice not only has a monopoly on outrage politics, but that when the exact ideas that are promoted by the left are used by the right/conservatives/whatever-Trump-supporters-are, only they are attacked. It seems to be targeting of tribes, not even of ideas.

And that’s the point. Trump engages in a motte-and-bailey doctrine where he says things that obviously imply bigotry or outright harming non-Americans, but then if you call him on it, he deflects or calls it a joke. This is an annoying tribalistic tactic (often employed by social justice warriors and also Ann Coulter) where a group will make a ridiculous claim, but really support a weaker version of that claim (see part IV here). As Scott Alexander says, social justice warriors seem to imply ridiculous things like “men can’t be part of a discussion on gender”, but when challenged, they state more defensible positions like “men shouldn’t interject into safe spaces for women”.  Trump says some Mexicans coming over the border are rapists, with the implication being that the average illegal immigrant is a violent criminal. But if you call him on it, he’ll say that he also said “many of them are good people!” which is technically true. He also didn’t say 2nd amendment supporters should shoot Hillary Clinton, but he left it open.

Trump is in part successful (and especially appealing to the alt-right) because he meets social justice warriors with their own methods, and it’s hard to pin him down on anything because his entire presidential run is a giant troll. Of course, I really dislike many of the tactics of the social justice movement and the outrage tactics of internet culture wars. I’ve gone on the record about why I think their ideas and methods are bad. I understand the appeal of fighting fire with fire. But it won’t solve our problems. All of the criticisms aimed at the social justice movement still apply to Trump. We should be trying to elevate our society and discussions, not give in to the temptation to debase them. Collectivism is evil in all its forms, left-wing, right-wing, and bi-partisan.

Many Trump supporters have bought into his campaign as the only way to fight the social justice left. They are wrong on many levels; trolling can’t beat trolling, flip-flopping and incompetence can’t beat Hillary’s political machine, protectionism can’t beat markets, and nationalism and authoritarianism can’t beat freedom. In fact, by allowing Hillary Clinton, one of the weakest presidential candidates in recent history, to continue to dominate this election, Trump has handed the left one of their biggest political victories and squelched one of the biggest opportunities for American conservatives.

And Trump is not the only way to fight back against the worst methods and ideas of blue tribalism. One can oppose collectivism without sacrificing principles or lowering the level of dialogue. As I go through the following deep flaws that Trump has, keep in mind that Gary Johnson has none of them.

The Unknown

What does Trump actually believe? It’s almost impossible to know. These are just the positions I could find so far. I don’t think this list is comprehensive, but I want it recorded somewhere. Many of these are from this ABC news post, this CNN article, and this extensive NBC news article if they’re not otherwise cited.

  • He used to think pretty highly of Hillary Clinton and even invited the Clintons to his wedding, and now apparently thinks they are terrible.
  • Trump declared that he thought Obama was the founder of ISIS, and when pressed on Hugh Hewitt’s radio show, he doubled down. Then after a full day of focusing on this point, he abruptly tweeted that it was sarcasm.
  • Trump was going to self-fund his campaign and not fund raise. But he’s gone back on that promise and is now taking money from whomever will give it to him. He was so short on money, he hadn’t even bought TV ads until the last week of August.
  • Trump started out ok with taking Syrian refugees, and then reversed his position and now wants to send them back.
  • Trump initially stated that Japan and South Korea should defend themselves, including with nuclear weapons. Now he says that’s preposterous and he never said that. How do you suffer amnesia about advocating the biggest change in US nuclear policy in history?
  • Trump has relentlessly hammered Clinton for supporting the Iraq War in 2003. It turns out in 2002, he backed the Iraq War too. Also, when asked about Mike Pence’s support of the war, he said it didn’t matter to him. But it still matters that Clinton backed it.
  • Trump made headlines stating he wanted to be a “neutral guy” in the Israel-Palestine conference (a big change from US policy which has held a strong alliance with Israel), and then said Israel was being treated like a second-class citizen later on.
  • Trump has also called the Libyan intervention a total disaster, but he in fact backed this intervention as well. When shown a video of his previous support, he acknowledges it and says he only wanted a “surgical” strike.
  • Trump was originally pro-choice and is now pro-life and even advocated that there should be “punishment” for women who get abortions. Admittedly in that interview, Chris Matthews did a good job of cornering Trump and not letting him get away with dodging the question, so maybe Trump doesn’t actually believe that. But that’s my point: we have no idea what this guy is going to do.
  • Trump advocated the use of torture especially against ISIS and suspected terrorists. When dozens of military advisers pointed out he would effectively be telling people to commit illegal acts, he stated “if I say do it, they’re gonna do it.” The next day Trump said he would be bound by laws just like any president, and then proceeded to call for waterboarding and torture in subsequent speeches.
  • Like abortion, Trump used to have a very different view on gun laws and actually supported an assault weapons ban. Now he’s a strong 2nd amendment supporter. Except in classrooms. Unless it’s a teacher in a classroom. What?
  • Trump was against raising the minimum wage, then for it, then said he wanted to leave it to the states, now says it should be over $10 and left to the states.
  • Trump has been for a single-payer system in the past and has praised Canada’s and Scotland’s system. But he hates Obamacare. But maybe he still likes the mandate. But he doesn’t know what he’d replace it with. His current website’s plan is a pretty good free market approach, but what would he actually pursue?
  • Trump was going to increase taxes on the rich, then said he would cut everyone’s taxes by huge amounts in an online proposal (that this blog looked at), then reduced the amount he would cut, and now it’s a pretty standard small income tax cut with an additional tax break for childcare
  • Trump seems to have called for a renegotiating of U.S. public debt similar to a debt restructuring for an insolvent firm. He seemed to have no idea that U.S. treasuries are so cheap to borrow with because they are never defaulted on. He even indicated that the U.S. can always print more money. Then he seemed to walk it back and say he wouldn’t renegotiate the American debt.
  • Last December Trump called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” In May, this changed to a “suggestion”. Then he added the idea of banning people from places with a “history of terrorism”, then added there would be “extreme vetting” (so not an outright ban?). Trump and his people also added that there had been “no change” in their policy since December.
  • Trump has stated that he would deport 11 million people currently residing in the US illegally. This is significantly larger than the current population of New York City. Then he said he would deport them all, but bring back the “good ones” legally. Buzzfeed even reported that Trump stated off-the-record that deporting all 11 million is just a starting point for negotiations. Just a couple week’s ago, Trump seemed to abandon deportations altogether. Now it seems they are in full force again.

I should also note that Trump said he would call Bill Gates and get him to shut down the internet if need be. I didn’t list that here because I don’t think he ever repudiated that position so it’s not a “flip-flop”.  Trump also suggested Ted Cruz’s father was involved in the Kennedy assassination. Even on Trump’s most common talking point, his “wall” on the border with Mexico is obviously not true because, as John Oliver points out, it will cost far more than Trump says it will, and there is no way we can force Mexico to pay for it. Adding a tariff on Mexican imports does not force Mexico to pay for anything, it forces American consumers to fund the wall.

This is related to questions of Trump’s temperament; it appears that on many of these interviews, Trump has either never thought about the issue presented to him, lied about his position last time so he can’t remember what his position was, or just honestly changes his position because he’s not smart enough to have foreseen the objection, but wants to appear knowledgeable and so says that was his position the whole time.  The bottom line is that on virtually every issue, even the core issues he’s maintained, we have no idea what he will do.  On top of all this, Trump is capricious and easily offended. He has consistently filed lawsuits against press organizations that have criticized him, regardless of their ineffectiveness and potential attack on free speech. Do we want someone who has no principles, who has no idea where he stands on issues, and can be easily manipulated by his political enemies (“I don’t have thin skin”) to be in charge of our country’s national defense? The Supreme Court is an important issue in this election, but what makes us think we can trust Trump to actually pick from among the names he has mentioned before when he has changed his mind on everything else?

On many issues, he has taken positions not just worse than Gary Johnson or Hillary Clinton, but positions worse than any president in history. Will these be the positions he takes or will they change? Will any of his positions that sound reasonable stick around once he is president? We don’t know.

The Incompetence

Trump has a record of questionable business acumen as well as straight-up fraud. He certainly has done well in the real estate market, but in other ventures he’s been mostly a flop.  He has also widely exaggerated his net worth by constantly trying to tout his own brand. And, by admission of its own employees, Trump University had no interest in teaching any of its customers, only in selling them the most expensive seminars it could.

His political campaign has also been questionable. We will get to policy in the next section, but for now let’s just talk about Trump’s job as a politician, which is to get people to vote for you.  As I noted in May, Trump was one of the worst candidates the Republicans have had as far as political appeal.  He won the Republican presidential primary with only 45% of the vote. By itself, a number that low isn’t unprecedented, but when combined with the fact that most of his primary opponents have decided against endorsing him, he was one of the least liked Republican candidates among Republicans in recent memory.  He’s also only averaged above 40% in FiveThirtyEight’s polling average and above 44% in RealClearPolitics’ average for a couple weeks in July. He has never really pivoted to the general electorate. Trump has had several changes in his campaign management due to apparent incompetence. He will be the first presidential candidate since Nixon to not release his tax returns, and he has just started airing TV ads. That’s correct, Gary Johnson was outspending Trump on TV time until September.

Trump’s response to his abysmal appeal has been to suggest that all polls that don’t show him winning are rigged. In fact, Politico even published a column entitled “What if Trump doesn’t accept defeat?”  As already mentioned in this piece, he got into a very public spat with the parents of a Gold Star soldier who had given his life in 2004. He also said that “there must be some form of punishment” for women who get abortions, and then Ben Carson said that Trump wasn’t expecting that question. Trump wasn’t prepared for a question about abortion in a political event while running for President? You cannot be serious.

What is Trump’s plan in office when foreign heads of state ask him obvious questions he should know the answer to? What is he going to do when people don’t automatically like what he has to say? He has failed in essentially every venture that wasn’t real estate or a reality TV show. The inability to make changes for a better long-term strategy combined with the need to retaliate over every perceived insult disqualify Trump from being Commander-in-Chief.

The Policy

As I’ve stated, it’s hard to nail down what Trump believes on anything.  It often appears like he has never thought about policies or the implications of policies until objections are brought up to him.

One aspect that had been central to Trump was a hardline stance on immigration and deporting illegal immigrants. As of a couple weeks ago, he appears to have flipped on that and now flipped back, but his website still has language that appears to indicate serious criminal charges for anyone living here illegally. Even if Trump has become less focused on deportations, his immigration policy comes with absolutely massive costs, both fiscal and legal. As noted by John Oliver, his “wall” on the Mexican border will likely cost several times as much as he’s claimed, not to mention the hidden costs of wasting construction time and resources on building a concrete wall literally in the middle of nowhere.  If this project ever does happen (which it won’t), it will cause the cost of construction and related services to go up as resources are pulled into a giant wasteful wall. Moreover, as Trump’s website acknowledges, most illegal immigrants don’t sneak over the border; they cross with legal visas and overstay them, and so this wall will do almost nothing to stop illegal immigration.

There are also effects on American citizens as well who are forced to deal with questionably constitutional Border Patrol stops where people are pulled over with no reasonable suspicion or probable cause. Trump has also focused on crime caused by illegal immigrants, despite the fact that crime rates are much lower among this segment of the population than among American citizens. Terrorism, as noted by this blog, is so unlikely that the threat of terrorism via immigration is not even worth addressing.

Moreover, there is a self-evident free market argument for immigration; if the economy would work more efficiently without immigrants, they wouldn’t be coming. Specifically in the United States, immigration helps to expand our workforce while European economies shudder under high levels of retirees and low birthrates.  The OECD has also found that because immigrants come to work, they are productive enough to pay more in taxes than benefits they get out. Trump’s arguments for making H1-B visas harder to give out and more expensive just creates an incentive to ship jobs overseas rather than keep them here. Overall, it seems better for Americans (and likely the global economy) to keep immigrants coming here than to ship the jobs overseas.

There is certainly an argument that we haven’t seen this level of immigration in the United States in a while, even on a percentage scale. Immigrants now make up 13% of the population, but that’s still less than was common during the late 19th century. There’s also the true point that most immigration prior to the ending of national origin quotas in 1965 was from Europe.  Yet, since this is essentially a cultural and not an economic argument, at best this still argues that we should have open immigration–just from some countries and not others. It also doesn’t offer resistance to other forms of open immigration, such as for advanced degree holders (especially graduates of American universities).

We also have to acknowledge that there really are serious obstacles for potential immigrants right now…which has only resulted in illegal immigration. Trump acknowledges the economic burden of an over-regulated economy, but then proposes tons of new regulations on immigration. Using the state to pick winners and losers in the economy is a dangerous thing to do.

Trade is the other area Trump has been most outspoken on. Here, unlike immigration, there is no cultural argument, there is only economics. And it’s clear that when it comes to trade economics, Trump has no idea what he’s talking about. He would add tariffs to goods, making them more expensive for average Americans and cutting into middle-class purchasing power. He would start trade wars with China, and attempt to reverse foreign governments subsidizing their own exports which directly deposits foreign tax revenues into the pockets of American consumers. The protectionism he advocates is essentially an argument for the global economy to leave the US behind and to ensure that new technology and innovation is happening elsewhere while our economy stagnates and our lack of dynamism and competition gets even worse.

Why is Trump suggesting this? Bryan Caplan points out in The Myth of the Rational Voter that voters are subject to many biases, most of which you can find in Trump’s policies. This includes, among others, an anti-market bias and an anti-foreign bias, where voters tend to underestimate the benefits of market systems as well as underestimate the benefits of interacting with foreigners. But despite these biases, free trade is immensely good for the economy. Tariffs being some of the most regressive taxes we have, freer trade is also a big tax break for poor Americans relative to the rich.  Trade, along with immigration, is one of the best areas in which American policy can directly improve the world.

The Authoritarianism

Let’s take a quick history detour: in 1972, five men were arrested for breaking into the DNC’s Headquarters in the Watergate Complex. They had been sent by the Nixon reelection committee, and the Nixon administration immediately sought to cover up their involvement. Nixon actually ordered the CIA to block the FBI’s investigation into the burglary, claiming national security issues.  The administration hoped that would prevent any further prying, but as more details came out, a Senate select committee was established in February 1973 to investigate a possible cover-up, and a special independent investigator was appointed by the attorney general.

When a Senate hearing uncovered that there were tapes of all Oval Office conversations, the Senate and special prosecutor subpoenaed the tapes, which Nixon refused to turn over, citing executive privilege. When the prosecutor persisted, Nixon actually ordered the attorney general to fire him, and the attorney general resigned in protest. Solicitor General Robert Bork eventually complied, but under political pressure, Nixon appointed a new special prosecutor. Edited transcripts were released in early 1974, which showed Nixon in a poor light, although they did not fully incriminate him. The new special prosecutor subpoenaed specific tapes which Nixon again refused to turn over. The case went to the Supreme Court which ruled unanimously that Nixon had no unqualified privilege of immunity from investigation, and that he had to turn over the tapes. Nixon did. They revealed clear wrongdoing on his part, and the House Judiciary committee recommended impeachment on several counts. Knowing he would soon be impeached and likely removed by the Senate, Nixon resigned.

There was a backlash against the office of the presidency after Nixon, but we have fully reversed that trend today. The Bush and Obama administrations have undertaken naked power grabs that have helped create an imperial presidency beyond anything Nixon ever dreamed of. Many libertarians have been warning about these massive power expansions for years. Now in the face of the Trump administration, we’ve created all the tools a tyrant would need to run amok.

As Conor Friedersdorf notes in The Atlantic:

  • The president can order American citizens killed in secret.
  • The president can detain prisoners indefinitely without charges or trial.
  • The president can order drone strikes at will in countries against which no war has been declared.
  • The president can start a torture program with impunity.
  • The president can conduct warrantless surveillance on tens of millions of Americans.

To that I would also add that if deemed a troublemaker, the government has plenty of options to attack you without disappearing you. We know at least the DEA and IRS have used NSA information gained through mass surveillance of Americans, and then obscured this source by finding another stated reason to stop a suspect. The enormous amount of statutes on the books means it’s almost certain average people break laws every single day, and so these law enforcement agencies can always find probable cause to arrest you. Then they can stack up charges to force a plea deal, all at the discretion of prosecutors.  As it stands right now, there’s a strong case that the criminal justice system is biased, slow, and unfair, and that it deprives individuals of their rights. But now imagine Trump in charge of the DEA, FBI, intelligence services, and the military.

Trump administration could be even worse than Nixon; given Trump’s continual flip-flopping, his trolling, his total unpreparedness for obvious challenges, and his terrible policy ideas, we don’t actually know if Trump understands how government works. Many of his fantastical policy ideas on his website go beyond the usual politicians’ wishlists; it’s unclear whether he would even try to sell his agenda to Congress, or just try to implement it with executive authority, or indeed if he would understand the difference.

For example, nestled in his immigration policy is a call to end birthright citizenship. Does Trump acknowledge what that would require? As Rand Paul has noted, the 1898 case US v Wong Kim Ark declared that children of legal immigrants were automatically citizens. It seems that Trump wants to overturn this case, which would require a constitutional amendment. It’s possible Trump wants only to stop birthright citizenship of illegal immigrants (he keeps changing his positions on everything), but does he want to do this with a law, or a legal battle? Does he realize that the president can’t pass laws unilaterally? It’s also worth wondering what Trump believes he can actually do on abortion. We’ve already discussed his bewildering stance that women should be punished for getting an abortion, a position basically no one else has ever advocated for. But does he realize that he would need to pass a constitutional amendment to achieve that goal?

Another example, he declared on a debate stage that if he told the military to commit war crimes they would do it. That’s not only against US law, that’s against international law. If he thinks that he can do things as president that are already illegal, what makes us think he would be waiting for Congress to do anything? How about shutting down parts of the internet? In Trump’s own words: “Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people.” How about banning people based on their religion? Do we think Trump will wait for Congressional approval of obviously unconstitutional ideas? Or will he just order that they be done without thinking, just like everything else in his campaign?

The ACLU has released a 27 page memo on things Trump has said that are blatantly unconstitutional. It makes an excellent legal case against Trump’s ban on Muslims entering the country as well as his mass deportation of illegal immigrants. The magnitude of individual rights violations from deportations specifically would be staggering, as there is no way to arrest millions of immigrants without also arresting regular American citizens and legal residents as there is no way to tell them apart. Arrests would have to be done without probable cause and largely based on racial profiling with likely hundreds of thousands of law abiding people caught up in the dragnet. The police state necessary to accomplish such an action is likely beyond even the secret police organizations of former communist nations.

The ACLU memo also makes an important point concerning Trump’s promise to “open up the libel laws”: there are no federal libel statutes. What exactly Trump would do were he to be president and then find out that there are only state libel laws, I have no clue. But imagine the powers of the Justice Department in the hands of someone who has a history of abusing eminent domain and using the power of the justice system to silence critics. He has already blacklisted media outlets he doesn’t like and banned them from his campaign events. As Damon Root of Reason notes: “Just like a crybaby advocate of political correctness, Trump wants to hollow out the First Amendment in order to make a ‘safe space’ for himself.”

It’s not hard to see the abuses of the Nixon administration repeated under a hypothetical Trump one. But in 1974, when Nixon lost his appeal to the Supreme Court, he still turned over the tapes. I don’t know if we realize how vulnerable our constitution was in this moment. Constitutional power is not something physical; as Abraham Lincoln proved, the Supreme Court has no enforcement arm. In retrospect, if Nixon had just wanted to maximize his political power, it seems that his best plan would have been to not release the tapes and accept whatever political fallout that was. Maybe he would have been forced to resign, maybe not, but he only risked being in the same situation that actually happened. Trump has arguably already promised to do more unconstitutional things than Nixon ever did, and he’s less popular than Nixon ever was before Watergate. If in a similar situation, would Trump comply with the Supreme Court? With Congress? He’s already calling the election rigged before it’s even happened, and he doesn’t seem to believe polls that report him far behind Clinton (which he is). If he found himself thwarted by the other branches of government, would Trump allow the rule of law to occur, or subvert it using his executive authority? Would he even care that his actions were unpopular given how unpopular he already is?

Most of the problems in this section also apply to Hillary Clinton, and it is likely she would continue to abuse government power just like the Bush and Obama administrations. But while Trump may be running against Hillary, I’ve already made the case that your only decision in voting is whether to waste your vote on a main party, or help get a third party better ballot access. Gary Johnson specifically has been an outspoken critic of the advances of government power and the growing authoritarianism centralized in the presidency. If you want to stand against the increasing authoritarianism of the federal government, there is no way to justify voting for Trump over Gary Johnson.

Trump has many problems as a candidate: he is inconsistent, incompetent, and he reduces our ability to have real discussions. His policies are bad, but his authoritarian threats should give us the greatest pause. Would you vote for Richard Nixon today if Nixon told you he was going to abuse executive authority to preserver his own power? If he continuously attacked free speech and criticism, if he promised to arrest millions of people living in the US, do you think voting for him would be a good idea? Well, it’s not a hypothetical, all of these policies are literal quotations from Trump himself. You shouldn’t vote for Nixon, and you shouldn’t vote for Trump.


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Picture credit: Gage Skidmore, modified by postlibertarian.com (grayscale), licensed under BY-SA-2.0.