Dictator Trump? That’s Just Silly James Allan
https://quadrant.org.au/news-opinions/america/trump-is-no-dictator/
Let me start this reply to Roger Partridge’s column (Trump’s War on Constitutional Democracy) by laying my cards on the table. I know Roger Partridge. He is one of the best lawyers in New Zealand. He, like me, has grave worries about the sort of judicial activism or judicial usurpation of the role of Parliament that he sees over across the Tasman (and which, in enervated form, is on clear display here in Australia too). Indeed, Roger and I have worked in parallel and at times together to try to rein back the current imperial judiciary in New Zealand, a set of top judges seemingly intent on making significant inroads into parliamentary sovereignty simply by decreeing new supposed realities in big-ticket cases. Indeed, in an excellent recent report, ‘Who Makes the Law? Reining in the Supreme Court’, Roger sets out the problems chapter and verse and then offers proposals to ameliorate this big-ticket problem.
He and I are fully in agreement about what is happening in New Zealand and I support all of his proposals. But for my purposes today I thought it best to begin by noting how much he and I agree about the state of Antipodean judicial and constitutional affairs.
I need to note that because I certainly do not agree with how Roger has characterised the first month or so of the second term of President Trump in Saturday’s Quadrant Online. Readers who haven’t done so should first look at what Roger argued. Here’s a sample:
♦ Roger notes that Trump has made 50 executive orders since taking office a little over a month ago. (Roger does not tell readers that Joe Biden issued 60 such orders in more or less the same amount of time.)
♦ He condemns Trump’s use of emergency powers as regards justifying tariffs on Mexico and Canada and suspending asylum applications.
♦ He claims that Trump is trying to rewrite the 14th Amendment by executive order to stop birthright citizenship.
♦ He praises the lower Federal Court judges who have issued nationwide injunctions to stop the suspension of asylum claims and birthright citizenship applications. Indeed, he cites what some of these judges have said. But Roger never lets readers know that every such injunction-issuing judge was a Democrat appointee.
♦ He notes J.D. Vance’s questioning of whether unelected judges have this authority to override executive power and Vance’s assertion that such actions by judges is constitutionally illegal. For Roger, that sort of scepticism ‘reveals a fundamental attack on constitutional government’.
As an aside, when Roger writes a report detailing how New Zealand judges have gone off the rails – and they have – by legislating from the bench is he not in that context ‘openly questioning judicial authority’? And what’s wrong with such questioning? Moreover, there would be plenty of left-wing Kiwis in the so-called ‘Judge’s Party’ who would word-for-word characterise Roger’s who-makes-the-law? critique as ‘a fundamental attack on constitutional government’.
But back to the US. Is the Vice-President somehow constitutionally prevented from criticising unelected judges? If so, that’s a constitutional norm I have never heard of and certainly would not support. I think what Roger really appears to dislike is the hint Vance makes that the Trump administration might in extremis simply ignore these lower court injunctions – you know, the way President Lincoln did when he flat out ignored the Supreme Court’s writ of habeas corpus as regards arbitrarily detaining citizens and the way that President Jefferson wrote what he would do if democratic executive government were to be hamstrung by activist judges. I will come back to this issue.
Then there are Roger’s claims about the ‘vindictive purges’ of January 6 investigators — the firing of Justice Department lawyers and the FBI agents demoted and dismissed, plus stripping Secret Service protection from former officials. And all of that and a bit more is sandwiched between Roger’s references to how Mussolini came to power. And to Peron in Argentina. And to Venezuela’s Hugo Chavez.
And most overdone, hyperbolic and sensationalist of all is the implicit comparison he appears to make to Hitler. I don’t know if this was intended or not, but many readers (including me) will read the paragraphs on the German legal theorist Carl Schmitt – who, as Roger notes, ‘provided the intellectual framework for authoritarian rule’ (which is a softly-softly, ‘you know what I mean’ way of saying ‘the intellectual framework for Adolf Hitler’) Anyone who wheels out the Hitler analogy has lost the argument already. Just ask the Democrats who wheeled it out repeatedly before the US election and helped Mr Trump win all seven swing States, the Senate, the House and the popular vote. US voters knew it was a laughable, ridiculous assertion.
Let me be blunt. I think it is patently absurd to suggest or believe Mr Trump governs anything like the way Chavez, Mussolini or Hitler used power. Suggesting that analogy, explicitly or implicitly, strongly or ever so faintly, is not much more than what you’d see in the wilder pages of The Guardian. Or on today’s massively left-skewed public broadcasting networks. Or MSNBC and CNN. Come back to me when Mr Trump has put a few million people in concentration camps and gulags; outlawed all other political parties; killed opponents; co-opted big businesses to do as he says; invaded other countries. Let us not forget that in his term Mr Trump was the first US President in eons not to take the US into a single new war or send troops to a single new venue – making it ironic that what many today dislike is that he’s not warlike enough, not enough in favour of war to want to keep sending hundreds of billions of US taxpayer dollars to prop up Ukraine in a war it can’t win and where the US taxpayer pays over 70 percent of NATO funding. While Europeans pay next to nothing, meaning poor taxpayers in Arkansas are in effect funding the bloated German welfare state.
Or, heck, let’s keep it easy, come back to me when Trump has come close to doing what the Biden administration did in terms of weaponising the US judicial system to bring lawfare and patently bogus criminal cases against its main political opponent so as to bankrupt him and to put him in jail for hundreds of years. By the way, Trump had a clear case of illegality to prosecute against Hillary Clinton when he came into office the first time in 2017 and he explicitly opted not to try to prosecute her.
In large part I was motivated to write this reply to Roger by his over-the-top resort to Guardianista-style hyperbole. Anywhere, anytime, I am available to debate whether there is any remotely convincing analogy between Team Mussolini/Hitler and Orange Man Bad Trump. Because there simply is not. The bold assertion by Roger that Trump’s assaults ‘threaten democracy itself’ is, in my view, errant nonsense.
Let me respond to some of Roger’s more specific, less bombastic, grievances.
The 14th Amendment claim: Roger asserts that Trump is trying to rewrite the 14th Amendment by executive decree. In my view that is not remotely a fair categorisation. Here are the relevant words:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…
Yes, the US has birthright citizenship. It is the only democracy I know of to have such a frankly idiotic policy in place. But in law the substantive merits of a policy – all of which strike me as against birthright citizenship – are neither here nor there. The question is whether that outcome was laid down in the US Constitution and thereby taken out of the hands of the elected branches so that only a constitutional amendment could reverse it.
Roger just assumes the meaning of this part of the 14th Amendment is self-evident and that this result has been constitutionalised. But anyone reading the subordinate clause would see that it is not that simple. Nor has this issue ever – ever – been tested in the US Supreme Court. More than a few US legal scholars think Trump could win in court. This even includes a Democrat or two. And it most definitely includes a lot of what are known as originalists who – like me, and I had thought like Roger – believe that the meaning of a legal text (or for me, any text at all) is determined by what those who had been given the legitimate, lawful authority to make that law intended it to mean, and what any well-informed person at the time of enactment – not today – would have understood it to mean.
So did the post-Civil War drafters of the US 14th Amendment intend to cover illegal aliens. This was back when no one traveled to have ‘anchor babies’ to get citizenship or snuck in illegally to do so. Did they intend subject to the jurisdiction thereof to encompass such a broad, wide-ranging outcome covering illegal aliens? Maybe they did and that’s what was understood at the time. But maybe they didn’t. Regardless, I would put money on the fact that when this gets to the top court in the US it will not be a unanimous decision in favour of birthright citizenship.
If the legal outcome is in doubt, not conclusively self-evident (at least outside the pages of The Guardian and New York Times), then why not an executive order stopping it? That would be step one in getting the meaning of the constitutional provision tested in the courts and, eventually, before the Supreme Court. It is not ‘rewriting the 14th Amendment by executive decree’ because any time a law is uncertain governments will proceed with their understanding of it until gainsaid by the courts. If you want to find an actual instance of ‘rewriting the Constitution’ chutzpah you have to look to the last days of the Biden administration, when Old Joe tweeted the claim that the Equal Rights Amendment had passed (it had not) and that it would be treated as having passed. Everyone ignored Mr Biden and just treated this as the further fruit of senility.
2) All things US border related: I think any fair-minded account of Trump’s executive orders in regard to the US borders would start by noting that in his first term Mr Trump substantially brought down the numbers crossing illegally. In Mr Biden’s first week in office he rescinded some 92 executive orders – including stay in place in Mexico – and thereby unleashed the biggest tsunami of illegal aliens coming into the US in history. Estimations vary over Biden’s four-year term from 12 million who got in to more than 18 or 20 million.
People also differ on whether this was negligence on the part of the Democrats or was intentional in order to import people who would be likely to vote for them in future. Either way, you simply cannot understand Mr Trump’s executive orders related to the border without that background. More to Roger’s point, quite a few people consider the porous state of the border under Biden to be an emergency situation. I would certainly characterise it as such. Roger, given his strident criticisms of Trump’s executive orders, implicitly would not. Fine. Either way it is worth acknowledging that because of Mr Trump’s executive orders – and in just one month in office – the more than 10,000 daily illegal alien crossings under Biden have today, as of right now, gone down into the low hundreds.
Roger’s dislikes the threat of a 25 per cent tariff on Mexico, yet this was explicitly used to get Mexico to enforce its side of the border and to deploy its troops to do so. It worked. And yes, I know these tariffs look really stupid as regards Canada, and probably relate in part to Mr Trump’s visceral dislike of Justin Trudeau who, after Trump’s first term, called him all sorts of names, from ‘white nationalist’ to worse. Just remember the story of the New York city mayor who was campaigning and said to a voter ‘If you like seven of my ten main policies, vote for me. If you like all ten you need to see a psychiatrist.’ I am not here to defend every single thing Mr Trump has done. In fact for a long time in his first term I was a big critic of his caving in to the Covid lockdown thugs, though to be accurate Trump sided with freedom way, way more than Boris, Justin Trudeau, Scott Morrison, and galaxies more than Jacinda Ardern. Today, in implicit atonement, Trump is unwinding any and all of his lockdown errors. But again, if the test is ‘do you like every single thing politician X is doing’ then no sane person can answer yes. I am not doing any such thing.
However, back to this debate. I understand that many people do not agree with me about wanting to shut the US border vis-à-vis unvetted illegal aliens. Roger may agree with me. He may not. I don’t know. What is pertinent in this debate is that Mr Trump signalled on this and much else what he would do if elected and he did so in clear, specific terms. Hence voters knew this before the election, the one in which he won a massive victory – indeed, Trump completely jettisoned the usual ‘small target’ playbook of conservatives around the Anglosphere and made a wide-ranging array of promises to voters. And now he is doing his darndest to deliver on those promises.
I know that all of us conservative voters have been habituated to politicians who promise things before an election and never do them. Still, when a politician does set out promptly to do what he told the voters he would do, then I think there is plenty of ground to contest Roger’s characterisation of this somehow being ‘a threat to democracy’ — the following of the Hugo Chavez playbook,for haven’s sake — in keeping with the writings of Carl Schmitt or any of the other morally pregnant descriptions above.
3) Tit-for-tat reciprocity: Here’s another matter that seems to get under Roger’s skin. Mr Trump is firing bureaucrats and intelligence service officers here, there and all over the place. Some of it looks vindictive. Well, I think there is a reciprocity element involved. Whether it is wise and furthers constitutionalism depends on whether you believe Mr Trump is responding to what was done to him.
The 51 former intelligence officers flat out lied about the Hunter Biden laptop and arguably influenced the 2020 election. The FBI had the laptop since 2019 and everyone, all 51, clearly knew it was not Russian disinformation. I have no problem with all of them having their security clearance removed. The FBI knowingly lied to the FISA courts and its top leadership played a role in the Russia collusion scam. In other words, its senior people looked to me to be pretty darned partisan.
And don’t get me started on the Department of Justice. Roger seems to think firing people – not prosecuting them and threatening them with hundreds of years of jail time, as was done to Trump and others such as General Flynn.
Look, I’m pretty much the most pro-American law professor in the non-US Anglosphere. But the US criminal justice system stinks and I mean even before we talk about anything related to Mr Trump. No Kiwi, Brit, Aussie or Canadian would think it worthy of anything. At the federal level prosecutors have a success rate over 99 percent. That is not something a country should be proud of. Conrad Black and Mark Steyn have detailed the myriad deficiencies in the US criminal justice system chapter and verse. So it’s terrible to start with. Throw in a politicised desire to go after one’s political opponents and the system really is putrid because the tools of offering even liars immunity and making plea deals to get the testimony you want are potent tools.
Mr Trump knows – as Roger and I know – that most civil servant lawyers lean to the political left big time. The law schools are worse. In the US political donations are public information, and a couple of years ago an academic trawled through six years of donations from US law professors and found a political party ratio of 36:1 I’m betting I don’t have to tell Roger whether that’s 36 times more Democrats or more Republicans.
Heck, even the lawyerly caste is these days a standard of deviation or more to the left of the median voter. Want to find the most woke, ‘you must wear your pronouns on your shirt’ employers in lots of cities? Just pop in to one of the big law firms in Sydney. Or in Auckland. In that context, and given the clear promises Trump made before the election, Roger sees root-and-branch firings as ‘chilling’. I don’t. Remember the lessons of game theory or evolutionary biology: there are two strategies that can work and one that never works. The one that never works is to be nice, always ignoring the bad things done to you. Well, to my way of thinking, that just encourages future Democrat administrations to behave as Biden’s did,all the while thinking to themselves ‘My Lord, those Republicans are pathetically weak!’
The winning strategy (not morally but in terms of standing the test of time) is to be a bastard all the time. Again, look at Trump’s first term and this was not the case. He was flat out generous to Hillary in declining to prosecute her. The other winning strategy, the far more common one, is to go with reciprocity or reciprocal benevolence: I’ll be nice to you and generous as long as you are the same to me. But cross me and I’ll reciprocate at least as hard. I can’t speak for Roger but that would be my approach to the CIA, to the FBI and to the Department of Justice. And what Trump has done is to remove security clearances and fire people. There is no scope for him to go person-by-person through a Washington DC bureaucracy in a city that went 94 percent for Biden. So every DoJ lawyer hired by Biden is now gone.
Roger acts as though this sort of clearing out of political opponents from the bureaucracy is unheard of elsewhere. Or hasn’t been done before in the US. It will certainly be harsh on some. But people lose their jobs all the time. No one is being indicted (and some could be in my view). I am not saying I’d draw the line where Trump did. What I am saying is that Roger getting on his high moral horse and painting this as chilling, autocratic, an undermining of the constitutional order is wholly unpersuasive.
Look, if everyone (either conservative or progressive lefty) who now indulges in hyper-moralised criticisms of all things done by Trump had been making the same criticisms of the Biden administration – which fired Trump-linked federal prosecutors and set out with gusto to weaponise the courts – I’d cut them some slack. I’d disagree while appreciating the consistency. Was Roger equally adamant about Team Biden supposedly taking America to some ‘inevitable tyranny’.
4) Ignoring lower court injunctions: As I mentioned above, Roger is particularly aggrieved about Vice-President J.D. Vance’s suggestion that in extremis the Trump administration might just ignore some of these sweeping, nationwide injunctions issued by lower-level federal court judges. So, as a thought-experiment, I wonder what Roger would say about the mooted situation where pre-Civil War southerners went to rogue federal judges in the south – ones they knew supported them – in order to get injunctions to stop anything an anti-slavery administration tried to do. Would Lincoln stand for that? I ask because we know that there is a huge amount of forum shopping going on in terms of finding sympathetic judges to issue these injunctions.
How is democratic decision-making and the US’s separation of powers set-up – where all executive government is vested in the President – consistent with that sort of arrangement? It’s relatively new of course. And my bet is that Vance’s comments are intended to spur the Supreme Court to sort out these lower-level federal court judges. These are single judges issuing countrywide blanket and forward-looking injunctions.
As Roger knows better than anyone, imperial judges who feel few constraints about imposing their own moral druthers on the elected branches are very, very difficult to deal with. And I’m willing to bet that the Trump administration will get one of these cases to the Supreme Court as soon as possible and ask them to stop this practice. It is in no way a necessary feature of a constitutional government that first-instance judges can block some executive action across a whole country. I am moderately confident that the Supreme Court will put a stop to this practice. We’ll see.
As for the related issue of Elon Musk’s DOGE getting access to the records of federal bureaucracies, how is that remotely a grave constitutional concern? In my view, a far bigger threat to the US constitutional order (and to Australia’s and to NZ’s) is the unaccountable administrative state. Roger seems to assume that the President, the sole source of Executive power, cannot use that power to look into unaccountable bureaucratic actions and sift through the data they have collected. Whether someone believes this might ‘destabilise critical government operations’ (really??) or not, in this straight up question of greater constitutional legitimacy I don’t see how it can be with the bureaucracy and not the President. The vast preponderance of Americans agree with me. Indeed, these Musk-led revelations are immensely popular with the American voters. Sure, statutes of Congress beat executive orders. But the President and what he wants as the head of his – yes, his – bureaucracies is surely constitutionally entitled to send in anyone he wants to look at anything at all. Unless there is a statute of Congress prohibiting it. As far as I am aware there is not. Otherwise there is some fourth branch in the US constitution called the ‘Administrative State’ that is a power unto itself and in effect outranks the President.
Roger says he wants to reduce the bureaucratic leviathan but when President Trump takes action to bring in an Elon Musk, well, that sort of ‘let’s reveal to Americans what is really going on with their money’ is characterised in terms that I think few would find convincing. Certainly this sort of transparency was not the hallmark of the Mussolini regime. Nor can I struggle to see it as any sort of threat, at all, to a democratic constitutional order.
All up then, I think there are plenty of reasons why so many conservatives find themselves thinking that Donald Trump is the best thing to happen to Western values and Western democracies in many decades. (I haven’t mentioned that Trump and Musk have double-handedly done more for free speech in the Anglosphere than all the judges and all the other conservative politicians put together).
Do I like everything Trump has done or is doing? Of course not. That New York mayor was right. But I am right now putting what I like at about 8.5 or 9 out of 10. That’s about the best tally of my lifetime for any Anglosphere politician. Yes, yes, yes — Mr Trump is bombastic. Boorish. Crass. He says patently ridiculous things – I’m a native-born Canadian and the one getting people riled up in the Great White North is Trump’s mocking of Justin Trudeau and of Canadians generally with the jibe that Canada would make a great 51st state. Come on! Anyone with a functioning brain knows, for certain, that Trump does not really want to encapsulate into the US some 38 million Canadian voters who are, on average, a good deal to the left of Californians and would make Democrat presidencies a sure thing far into the future. I know it. Trump knows it. So it will never happen and Trump doesn’t want it to happen.
Does he have to be so mocking, mean and willing to break the conventions of politeness? No. But that’s the kind of guy who is psychotically brave enough to have withstood what Trump has endured these last four years. We’re not talking about inviting the man to a dinner party.
To conclude, there are plenty of arguments for voting for someone other than Mr Trump. Or not liking his agenda. But Roger’s attempt to characterise the man and his actions this past month in some sort of beyond the Pale, hypermoralised and almost fearmongering way is wholly unconvincing.
Trump is a disruptor. To date he’s been very successful in terms of winning over the American voter (since his popularity is far higher now than at any time in his first term and at more than 60 per cent with men). But he has not moved the US into ‘the realm of constitutional crisis’. You might hear that on daytime TV, but I the claim isn’t remotely plausible.
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