Poor Mr. Trump. Just President, Nothing More?

#27 -- Why not be Boss Trump and throw your weight around for decades?

It turns out perfectionism is White Supremacy. We’re in the clear around here! …

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Pascal's Window: In the three weeks since I wrote this item, nothing's happened to change the basic perception that Donald Trump is heading for probable November defeat that will include Republican loss of the Senate.  The GOP might still win. But in a sort of reverse Pascal's wager, the consequences of failure will be so dire -- if Democrats end the filibuster and pass a giant new immigration  amnesty + cheap labor bill -- that it's crazy for those who support Trump on immigration and trade** to grit their teeth and vow to do the best they can with the candidates they've got. The trouble is we're running out of time to get Trump to see the light, pull an LBJ, get another candidate in place, and save the Senate.

It’s hard, obviously, to think of arguments that might convince Trump to take one for the team. It's so out of character — like Sydney Greenstreet telling Paul Henreid about the 'letters of transit’ in Casablanca — that if this were a movie you'd want to hang a lantern on the problem:

INT. WHITE HOUSE —DAY

TRUMP

You know, I've never taken one for the team before in my life. But I kind of feel like doing it now. It's a gift, from me.

OK, that seems implausible. What might work? Here's the best I can come up with:

Trump today has a chance to retire on top -- undefeated! like Gene Tunney -- as a Teddy Roosevelt-style one-election impact President, instead of suffering a humiliating drubbing that will make him permanently toxic in his party. He can spend the next four years building up a rival to FoxNews--a project that not only stands to generate billions of dollars in profit but would put Trump's commentaries front and center in American political life, every day.  Meanwhile, no responsibility, no blame, for what the next administration does.

Republicans will still be desperate for Trump's blessing this November. A lot of leverage in that! Out of office, Trump could continue to elevate his allies, banish his enemies, as with Sessions. In effect, he'll have done what no modern politician has done, and what Obama conspicuously failed to do-- build a political empire that extends beyond the Constitution's artificial two-term limit, enduring after any one President leaves office. A new machine! Under Boss Trump.

In four years, should Biden win, Trump could launch a Grover Cleveland-style comeback. Even if he fails to do that, he’ll have created a favorable environment for his lovely daughter Ivanka, should she decide to pursue elective office.

OK. That's the best I can do. I was starting to convince myself for a moment -- but then I'm pessimistic about Trump's chances of winning a second term. This sort of pitch is unlikely to convince Trump himself because he’s surrounded by aides committed to telling him he can win, showing him the few polls in which he’s ahead, and knowing that when he loses they'll be fine.

Is there any other way to avert the coming disaster? Maybe. We'll get to that below.

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**— i.e. as a way to improve the wages and status of less-skilled workers.

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Lust for Lustration: In a recent interview, the Lincoln Project's John Weaver talked grandly about how it wasn't enough to beat Trump. He had to beat "Trumpism," including potential GOP leaders like Josh Hawley, Tom Cotton and Tucker Carlson. The list of names triggered a slightly paranoid reaction on my part and this tweet:

@kausmickey

The Lincoln Project becomes part of cancel culture -- idea isn't to get rid of Trump but punish anyone who agrees with Trump (and disagrees with Weaver!) on the issues--Hawley, Cotton, etc.?

I soon learned, first off, that there are worse things than being ‘ratioed’. Saying something that seems obviously wrong to many, many people is a great way to get attention: "Stray voltage," the Obamans called it. Second, I was forced to figure out if I had a point. I do! Let's concede that "cancelling" elected officials is what democracy is all about. You could see how it could become oppressive--voting out anyone who ever waved a confederate flag or said something sexist or insensitive thirty years ago, etc.. But that's not happening and it would be an argument against democracy itself.

Actually, the ‘democracy = cancellation’ equation is even worse for me, since I favor a patronage system for government workers, where at least half the bureaucrats (under Charlie Peters’ 50/50 plan***) get replaced if their party loses an election — a potential mass cancellation every four years.

The problem is it won't stop at government officials (elected or unelected). Lincoln Project target Tucker Carlson isn’t a government official. It seems as if Weaver has let good press and imagined power go to his head, to the extent that he now aims to salt the earth against any recrudescence of Trumpthought, which his Project defines vaguely as failure to “support the Constitution.” At the very least, it implies some sort of purge in the Republican party, though the lust for lustration (as indicated by my Twitter replies) extends further: Basically if you ever voted for Trump you should never participate in public life again. (“Their beliefs are shit and they should be prevented from affecting the culture of the USA.” … “That’s not cancel culture, that’s just recognizing who should never have power or influence again.”) The purge will be enforced through consumer boycotts, if necessary

Maybe some level of lustration would be appropriate if we were dealing with, say, Nazis -- a comparison several readers made on their own. Denazification after World War II went way beyond denying party members elected office or political influence, to denying them employment or restricting them to manual labor. Even this amply-justified project bogged down after World War II, when it began purge potential industrial leaders, let alone purveyors of canned beans.

We're not dealing with Nazis. We’re dealing with (potentially) anybody who didn't think the way Weaver wanted you to think on the Ukraine impeachment. There's the sneaking suspicion that the Lincoln crowd is really using a broad ad hominem complaint (‘you enabled Trump!’) as a bad faith tool to discredit ideas -- like trade and immigration restrictions or an end to neocon wars—that might persist after Trump is gone. It’s a little much to disqualify Carlson, or Ingraham, or Charles Grassley or Mo Brooks — or Ben Sasse!****—from weighing in on these issues because they didn’t think pressuring Volodymyr Zelensky into investigating Hunter Biden was a “high crime and misdemeanor.” *****

No doubt we’re in for a big fight over the Republican Party if Trump loses. There should be a big fight. The NeverTrumpers hate everything the nationalist Trumpers stand for, and the Trumpers hate everything the globalist NeverTrumpers stand for. Meanwhile, the political glue that used to hold this party together -- support for tax cuts and a strong defense -- no longer has much potency. (Look where tax cuts got the Paul Ryan majority in 2018.) There is simply no good reason for these two groups to remain in one party. Who gets the name, logo and clubhouse seems a minor concern. *****

The future of the Trumpers, even if they keep the “Republican” name, would seem to lie in moving two giant steps toward the statist left, on a nationalistic basis, in the manner of Poland's Anderzej Duda.****** National health care, immigration control, trade moderation, what might be called regulation of woke extremism — maybe even environmental protection. The Lincolners can go find their own home. They'll have lots of money!

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***— Under the Peters plan, half the government would be filled with the hard-to-fire civil servants we’re familiar with. They’d serve as an institutional memory and firebreak against tyranny. But half would be firable employees ideologically committed (in theory) to making the elected government’s agenda work.

**** — OK, you can have Sasse.

***** — Of course the truth, in the Lincoln Project’s case, may be that they’re mainly trying to make money by drumming up donations. But many, including donors, will take their rhetoric seriously.

******— Bill Kristol may have been more realistic than Weaver when he suggested that today's GOP wouldn't want him back.

****** — The easiest way to convince yourself that such a "horseshoe" right/left pro-working class agenda is possible is to read Mike Konczal’s unconvincing 5 point tract on why it's not possible. Konczal’s basic argument seems to be that controlling immigration and reshoring jobs are not enough! We also need a stronger minimum wage! We need full employment policy! We need social insurance! We need more antitrust! To which the obvious answer from right nationalists would be: OK, we'll do those things too! The only dealbreakers, in my view, are the left’s embrace of 1) legalistic Wagner Act Unionism 2) a big no-work-required Universal Basic Income and 3) abortion. But even 1) and 2) may not be dealbreakers for the people who’d actually be cutting the deal.

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Kausfiles Insaner — John Roberts’ Roach Motel: I've been struggling for a quick, weed-avoiding way to explain how awful Chief Justice Roberts' ruling in the "DACA" case was. How's this:

1. There were two parts to Obama's 2012 "Deferred Action for Childhood Arrivals."

A. One part let about 800,000 illegal immigrants who crossed the border when they were young know they wouldn't be deported.

B. A second part gave them benefits, like work permits and Social Security numbers.

Trump pledged as a candidate he'd rescind both parts, which he finally did after almost a year in office. He was sued. The case made it to the Supeme Court.

Chief Justice Roberts says part B, the benefits part, required a formal rulemaking under the Administrative Procedures Act. That's bad for Obama because he didn't go through a formal rulemaking. (Part A, Roberts suggests, was simply the traditional ability of an agency to decide not to prosecute. No rulemaking required.)

Trump did go through a formal rulemaking for rescinding part B.

Looks good for Trump, right? Not so fast!

2. Remember, judges are allowed to overturn rules if they are "arbitrary and capricious,” a seemingly deferential standard that lets creative judges basically do whatever they want while pretending to be deferential.

Roberts says the Trump action was "arbitrary and capricious" because — well, apparently, it repealed Part A and part B together. It didn't "consider,” on the record, the possibility that it could repeal part B while retaining part A -- the part Trump could repeal without going through any rulemaking at all because it was within his discretion. The argument is that Trump took away the benefits (B), which he could do, but he didn't think hard enough about the possibility of not withdrawing deportation protection (A) — even though he could have withdrawn that protection without Roberts’ second-guessing if he’d just done it in a separate proceeding, and even though Trump obviously didn’t want to retain the ‘no-deportation’ protections, for obvious reasons, whether he wrote a boilerplate paragraph dismissing the possibility or not.

In short: Part B was illegal (no rulemaking proceeding). Part A was within Trump's discretion. But he wasn't allowed to repeal the illegal part because he also exercised his discretion in Part A without discussing it in the Part B rulemaking (even though it wasn't subject to rulemaking).**

Got it?

The upshot is that the program Obama unilaterally created was almost certainly illegal but the most obviously illegal part could not be ended unilaterally by Obama's elected successor — at least not without a lengthy, multi-year process (the process that Obama himself hadn’t bothered to go through).

You can start it up but you can't shut it down. The Roach Motel theory of regulation.

Like the Supreme Court’s decision in Bush v. Gore, it's hard to take Roberts’ opinion seriously as a statement of law. It's more like a statement in which Roberts says he doesn’t want the DACAns to lose anything before the election.

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** — Also, according to Roberts, the Trump administration didn't adequately consider protecting the DACAns “reliance” interest (in their jobs, pursuit of degrees, whatever) if the program was cancelled. Roberts suggests various solutions he thinks could have been considered-- even though a) the Trump administration did protect the reliance interest of those whose DACA status was going to expire within 6 months (but not for the right reasons, Roberts says!) 2) Trump’s agency also did explicitly consider the reliance interest (too late, Roberts says!). Obviously, the weight Roberts gives to “reliance” is another ratchet: A president can issue an illegal order — and it’s illegal, oh yes! —but that creates “reliance” interests which then can’t be overturned easily, certainly not as easily as they were created. So the illegal order gets carried out anyway, zombie style.

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Last Chances: At least two people seem to have taken Roberts’ wacky opinion seriously: Berkeley law prof John Yoo and President Trump. Not just seriously, but also literally. According to Yoo, Roberts gave the President the power to do basically anything he or she wants, knowing it will take years to undo:

[P]residents can now stop enforcing laws they dislike, hand out permits or benefits that run contrary to acts of Congress and prevent their successors from repealing their policies for several years

Trump, in a move so baffling it’s being ignored, has taken this ability to create ‘facts on the ground’ and run with it. He told Telemundo the Court decision gives him the ability to create a “road to citizenship” for the DACAns, a claim he repeated four days later. He was even more expansive talking to Chris Wallace on July 19, acting as if he’s going to enjoy in effect a new 100 days worth of unilateral lawmaking, Roach Motel style:

We're signing a health care plan within two weeks, a full and complete health care plan that the Supreme Court decision on DACA gave me the right to do. So we're going to solve -- we're going to sign an immigration plan, a health care plan, and various other plans. And nobody will have done what I'm doing in the next four weeks. The Supreme Court gave the president of the United States powers that nobody thought the president had … And DACA's going to be taken care of also. … But the decision by the Supreme Court on DACA allows me to do things on immigration, on health care, on other things that we've never done before. And you're going to find it to be a very exciting two weeks.

At least a couple of things need to be said about this. First, you don’t have to be a legal realist to know that there is zero chance the courts will let Trump get away with enacting “a complete health care plan” the same way it let Obama get away with enacting the DACA plan—i.e. by unilateral decree, without Congressional approval. It doesn’[t matter what Roberts said in DACA. He’ll say something else, and Trump will be facing an injunction, backed by SCOTUS.

Second, if Trump tries it, it will be setting the Constitution on its head, with the President legislating, and then Congress forced to try to moderate or veto him. Isn’t that … what do you call it, a high Crime and Misdemeanor? Seems way more serious a transgression than that Ukraine business way back a few months ago. The President will have, in effect, gone mad with a fanciful, inflated notion of his own power: Decreeing a “complete health care” law or a “major immigration bill” and the heck with Congress.

You want a way to get Trump out of the race? If the Senate held an impeachment vote today, on these powerful grounds, how many Republicans would vote against Trump? I suppose it would depend on what Trump’s unconstitutional order was — a DACA amnesty would enrage Trump’s ‘base,’ a health care plan might enrage everyone — and how Trump’s chances in November looked. If it looked as if Trump was dragging Republican senators into the minority, they might make the fabled Goldwater-like trek down Pennsylvania Avenue to inform him that he no longer had “a strong enough political base in the Congress” (as Richard Nixon put it in 1974).

True, that would in effect declare that it’s an impeachable offense to take Chief Justice Roberts’ DACA opinion seriously. I don’t have a problem with this declaration. Taking Roberts’ opinion seriously is not a that mistake Roberts, for one, will make.

If this seems implausible, but you’d still really like Trump to bow out, well … maybe Ghislaine has some tapes.

It’s come to that.

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