Wednesday, May 03, 2017

On Trump's Restraint and Good Judgment (I Hope)

Yesterday afternoon, I worked up the nerve to say the following to a room full of (mostly) white retirees in my politically middle-of-the-road home town of Riverside, California.

(I said this after giving a slightly trimmed version of my Jan 29 L.A. Times op-ed What Happens to Democracy If the Experts Can't Be Both Factual and Balanced.)

Our democracy requires substantial restraints on the power of the chief executive. The president cannot simply do whatever he wants. That's dictatorship.

Dictatorship has arrived when other branches of government -- the legislature and the judiciary -- are unable to thwart the president. This can happen either because the other branches are populated with stooges or because the other branches reliably fail in their attempts to resist the president.

President Trump appears to have expressed admiration for undemocratic chief executives who seize power away from judiciaries and legislatures.

Here's something that could occur. President Trump might instruct the security apparatus of the United States -- the military, the border patrol, police departments -- to do something, for example to imprison or deport groups of people he describes as a threat. And then a judge or a group of judges might decide that Trump's instructions should not be implemented. And Trump might persist rather than deferring. He might insist that the judge or judges who aim to block him are misinterpreting or misusing the law. He might demand that his orders be implemented despite the judicial outcome.

Here's one reason to think that won't occur: In January, Trump issued an executive order banning travel from seven majority-Muslim countries. When judges decided to block the order, Trump backed down. He insulted the judges and derided the decision, saying it left the nation less safe. But he did not demand that the security apparatus of the United States ignore the decision.

So that's good.

Probably Trump will continue to defer to the judiciary in that way. He has not been as aggressive about seizing power as he could have been, if he were set upon maximizing executive power.

But if, improbably, Trump in the future decides to continue with an order that a judge is attempting to halt -- if, for some reason, Trump decides to insist that the executive branch disregard what he sees as an unwise and unjust judicial decision -- then quite suddenly our democracy would be comprised.

Democracy depends on the improbable capacity of a few people who sit in courtrooms and study the law to convince large groups of people with guns to do things that those people with guns might not want to do, including things that the people with guns regard as contrary to the best interest of their country and the safety of their communities. It's quite amazing. A few people in black robes -- perhaps themselves with divided opinions -- versus the righteous desires of an army.

If Trump says do this, and a judge in Hawaii says no, stop, and then Trump says army of mine, ignore that judge, what will the people with the guns do?

It won’t happen. I don’t think it will happen.

We as a country have chosen to wager our democracy on Trump's restraint and good judgment.

[image source]


Callan S. said...

Really for any president you make the same wager, don't you? Obama, Bush...why build a system that hinges on the president being a nice guy? I mean, surely those judges are already a precaution against not nice guy presidents. But maybe there need to be other precautions, if the president has that much direct access to guys with guns (I mean, it's no better if he tells the guys with guns to do something, some military leaders say no and now they've said no to the main leader, they start consolidating power for themselves because its become a wild west)

Democracy depends on the improbable capacity of a few people who sit in courtrooms and study the law to convince large groups of people with guns to do things that those people with guns might not want to do

Mmm, that's my jam! Nice to hear it on the air, gets so few plays! It's like the Joker rants, it's something nobody talks about as long as its all going to plan.

howard berman said...

Our system was designed in a different era, I'll go out on a limb and speculate, where checks and balances were built into how vast and ungovernable the nation could in practice it could be given that mass transit was horses- true, more people had guns, but genuine power centers other than the federal government and President existed- am I exaggerating, for I am hardly an expert.
Those circumstances have changed, drastically, and that might cut the branches and root of your assessment, which I hope is right

Eric Schwitzgebel said...

Thanks for the comments, folks!

Callan: Yes, for any president. But none in the recent era have seemed so verbally dismissive of judicial authority over the president, so the issue appears to arise more acutely for Trump than for others.

Howard: Yes, over time it does seem that the US has trended toward increasing power in the central executive -- and perhaps this does reflect facts about modern communication and travel. I hope that the legislature and judiciary continue to serve as effective checks on Trump, as well as on future presidents (but also that they can cooperate in a good cause)!

Arnold said...

Hasn't this become America's first bout in understanding the usefulness of money verses the usefulness of work--to sustain life on this planet...

Pilot Guy said...

well... no.
The framers deliberately designed a system that was primed for gridlock. Any of three bodies can jam up the works. I have as much faith in nine Yale/Harvard grads that make up the SCOTUS as I do in the Donald (who I think is a buffoon).
The real power has always been in the laboratories of the State Legislatures.
The only folks who want governance by the courts are the folks who look down their nose at the hoi polloi and reject their democratically elected representatives in state houses across America.
You may recall that Obama's representatives lost over a 1,000 combined electoral seats over his tenure.
Most common folks simply disagree with you Eric and they each have one vote.

Eric Schwitzgebel said...

Pilot Guy, I'm not sure what your view is about what the majority opinion is. Do you believe that most people would prefer that the president have the power to disregard the judiciary? (My guess is that people might waver on this question and be highly influenced by the particular issue and/or their opinion about the current sitting president.)

I'm inclined also to disagree with the idea that the state legislatures are significantly more powerful than the federal government, though they do have more effect, probably, on education policy and local infrastructure.

Jorge A. said...

The best way to protect from a dictatorial outcome is to ensure that the branches of the armed forces are loyal not just to the executive through Chain of Command, but the other branches and (ideally but with great difficulty) to the abstract constitutional principles that are contained in written documents.

In the United States, I feel there is a long tradition for the highest command in the armed forces to have connections to all branches of government, and not just the executive. This is good.

Contrast with Venezuela, where over a period of 20 years, the ruling party managed to completely entwine the military power to the economic power of the executive- completely neutering the independent power of the judiciary and (particularly) the legislative branches.

Now the Venezuelan people have throw poo at tanks.

Eric Schwitzgebel said...

Yes, Jorge, that seems right to me. I hope that the U.S. has a military culture such that if the president says X and the courts say not-X, and both persist in the face of the other, the military doesn't just automatically defer to the president. I don't recall this having recently been tested -- and I hope it never is!

GNZ said...

Duterte can pull that sort of thing off because he is wildly popular. I don't think Trump has anywhere near the popularity to pull that off to a significant degree - with a choice between the constitution and Trump - the people with the guns will turn them on him.

In a way the fact that he acts the way he does makes him less dangerous than a person with a more Nixon style who is both Machiavellian and much more competent.

Although to temper that - the possibility of a major external threat (like a 9/11 level terrorist strike or Nth Korean war) might significantly change that calculation.