The Baby and the Bathwater
I have offered more than my share of criticisms of President Trump over the years, and I'm about to sum up the case against him one last time.
But before I do that, I want to stop to recognize some of the good things he has done. Even a bad president is going to get a few things right, and that's definitely true of Trump. I've acknowledged a few of these in the past, but it's worth putting them all down in one place.
The point is not to sway how you will vote, because the good things he has done are just one part of a broader picture. Nor is the point to show how magnanimous and open-minded we NeverTrumpers can be in recognizing his accomplishments while still insisting that the broader picture is not worth supporting.
There is a more practical and urgent purpose.
I think most people have already made up their minds in this election, and a record number, as many as half, have already sent in their ballots. If, as I think, the voters have already chosen to throw Trump out of office, all of his policies are likely to get tossed out along with him. The proverbial baby is about to get thrown out with the bathwater.
So it's important to know what things this administration has done that are good so we know what parts to try to save during the upcoming Purge of All Things Trump.
I'll start my list with the things that are least likely to be overturned or erased in a new administration, then work down to those that are most endangered.
During his 2016 campaign, Donald Trump promised to choose his appointees to federal courts from a list compiled by the Federalist Society, a highly influential advocate of constitutional "originalism." A lot of us scoffed, knowing that Donald Trump has a history of breaking promises. But I'll be darned if he hasn't followed through.
He hasn't done it alone, of course. This is as much Mitch McConnell's achievement as it is Donald Trump's, but that's true of a lot of presidential accomplishments: they require allies in other branches of the government who are dedicated to the same goal. The result is that this president has appointed nearly a quarter of all actively serving federal judges. Despite what you may hear from both sides, this is not unprecedented. Trump has appointed about as many judges as George W. Bush did at this point in his presidency. But Trump has appointed an unusually high number of federal appeals court judges, giving him an impact on many cases that never make it to the Supreme Court. And of course, the Senate just confirmed Amy Coney Barrett as his third appointment to the Supreme Court, creating a long-sought-after 6-3 conservative majority.
There are limits to the impact of originalism, as I recently pointed out in the context of Barrett's disparaging comments about the Lochner era, the last time the courts invoked the Constitution to impose serious limits on economic regulations. Generally, I find that both sides tend to project too many of their hopes and fears onto the Supreme Court. But having a large number of originalists on the courts is distinctly better than the alternative, which is to have a bunch of left-leaning "living constitution" theorists who openly bend the Constitution to suit their partisan agenda.
Can Trump's judicial appointments be undone? Yes, but not very easily. To do it would require packing the Supreme Court by expanding the number of seats and allowing President Biden to appoint a whole slate of new justices all at once. Yet this would be a difficult piece of legislation to pass, and a lot of the saner Democrats, among them Joe Biden, have indicated that they know it would set a very dangerous precedent. Yes, a lot of people on the left are talking about court-packing, but these are the same people who were talking about undoing the appointment of Justice Kavanaugh by impeaching him. There's a lot of incentive for partisans to sell revenge fantasies to the base, but these measures are unlikely to succeed.
So this is a Trump achievement that will only be undone through a long, slow, normal process: the retirement and replacement of federal judges over many years.
There are not a lot of bright spots in Donald Trump's foreign policy. The most significant one I can think of is his policy toward Israel, which has been generally supportive, and particularly the recent wave of Arab states opening normal diplomatic relations with Israel.
This has been a long time coming, and it was a process that began prior to the Trump administration. Many of these countries have had extensive unofficial relations with Israel for many years. But there is something important that is accomplished by making it official.
The key development here is that Israel, with this administration's help, has managed to separate its relations with the rest of the Arab world from its relations with the Palestinians. Here is how that was put in an article from 2019 speculating about this possibility.
In the case of the [United Arab Emirates], leaders see the Palestinians as not having much to offer. Israel, on the other hand, sells itself as an innovation hub—a position to which the UAE aspires.
Some in Israel have embraced Netanyahu's plan to bypass the Palestinians. A piece by diplomatic correspondent Herb Keinon in the Jerusalem Post published after the Warsaw conference contended that the Palestinians no longer held veto power over Arab ties with Israel. "In order to deal with the common enemy of Iran and radical Islamic terror, these countries have shown an interest in dealing with Israel even though there is no diplomatic process with the Palestinians to speak of," he argued.
In effect, the Arab countries are forging a separate peace with Israel, leaving the Palestinians on their own--something they should have done a long time ago.
The circumstances are not entirely happy. Part of the reason for the alliance is that the Arab states are attempting to counter Iran's attempt to dominate the region. The United States hasn't been doing much for them on that score, so they're beginning to look to Israel as a steadier and more reliable ally.
Other factors combined to point the Persian Gulf countries toward Israel's doorstep: The 2015 Iran nuclear deal with the Obama administration, which Israel and gulf leaders both opposed; Iran's expansionist moves in Syria, Yemen and elsewhere, which Israel and the gulf countries saw as grave threats; and the belief that the United States was pulling out of the region.
"They have greater trust in the reliability of Israel's position than the US," said Robert Malley, a former Obama administration official who now heads International Crisis Group. Presidents come and go, and White House policies pivot, he said. "But as gulf leaders always tell me, they need some constancy, and they'd find it more in a relationship with Israel, because Israel shares that similar strategic threat perception."
The best part is that this goes beyond a mere alliance of convenience and includes a deeper recognition of Israel's legitimacy.
Last year, Bahrain hosted a Trump administration conference promoting the economic aspects of its proposal to resolve the Israeli-Palestinian conflict, and Sheikh Khalid regaled Israeli journalists with olive branches. "Israel is part of this heritage of this whole region, historically," he told one, saying, "The Jewish people have a place amongst us."
And only on Sept. 4, a Saudi imam at Mecca's Grand Mosque preached about the Prophet Muhammad's kindness toward a Jewish neighbor, in a sermon that was variously praised or attacked as appearing to lay the groundwork for a Saudi normalization of ties with Israel.
"They're retelling the entire story of the Jews in the region," said Einat Wilf, a former Israeli lawmaker. "And they're changing the whole narrative: They're not saying, 'We still hate Israel, Jews are bad, we wish they're gone but we need them against Iran.' They're saying the Jews belong here, that we're not foreigners, and that the Palestinians need to accept us."
This is too big a trend to be due solely to an initiative from the Trump administration. Yet it is something that President Obama's Secretary of State, John Kerry, declared to be absolutely and categorically impossible. So it's fair to say that this was less likely to happen if the old gang had been in charge.
Now that it has happened, it would be particularly perverse of a new administration to attempt to reverse it. I think this is more likely to just be accepted as the new normal, even by those who dismissed it as impossible.
Criminal Justice Reform
For all his blustering about "law and order" and being tough on crime—not just during the upheavals of this past summer, but for decades—President Trump supported and signed 2018's First Step Act, a criminal justice reform bill that eased draconian mandatory minimum sentences imposed under previous laws.
The wider context for this is the history of the late-20th-Century crime wave. From the 1960s through the 80s, crime rates doubled, then doubled again. Big cities became unlivable, the middle class fled to the suburbs, and nobody had any idea when or if it was going to stop. So during the 1980s and 90s, politicians like Bill Clinton and—well, Joe Biden—passed laws to put more cops on the street, build more prisons, and crack down on "superpredators" by requiring harsher prison sentences. All of this was tied to the War on Drugs, which produced some particularly questionable policies, like the practice of imposing a lighter sentence for possession of powdered cocaine (the hard drug of choice for the wealthy and educated) than for crack cocaine (the hard drug of choice for the down-and-out). The First Step Act fixed some of these inconsistencies.
I remember the era of the crime wave, so I understanding that sense of helplessness and panic in the face of soaring crime. But after three decades of falling crime rates, it became clear that some of this was an overreaction, and it was time for carefully targeted reforms.
The First Step Act applies to federal courts and prisons only, and most people who go to prison are put there under state-level laws, so the reform's direct impact is limited. But it set a tone, endorsing on a national level efforts that have also made headway on the state level. This was particularly surprising given that Trump had campaigned in 2016 by hyping an obviously exaggerated fear of crime, often seeming like he was still stuck in 1978.
I don't think this reform will be under much threat under a new administration. Democrats love the idea of reining in the overbearing power of the state—when this is done on behalf of criminals, as opposed to businessmen.
Nevertheless, the far left actually poses the biggest threat to criminal justice reform, indirectly. For years, there has been speculation about a Ferguson Effect, in which protests that seek to delegitimize the police lead to a spike in crime and a return to the bad old days of the crime wave. That hadn't really materialized until this year and the aftermath of the George Floyd case, which led to a spike in violent crime over the summer. It's too early to tell yet, but if this continues, and if people start to feel anywhere near the anxiety that drove us to watch Dirty Harry movies back in the day, voters will clamor for a new crackdown and politicians will roll back criminal justice reform.
The other reason criminal justice reform is likely to survive is that it is actual legislation. Donald Trump loves to govern by executive order and hasn't focused much effort on promoting big legislation, not even when his party still had a majority in both house of Congress. As we're going to see below, that will turn out to be a major weakness of his agenda.
But just as Trump's eagerness to appoint judges has coincided with Mitch McConnell's eagerness to confirm them, so his openness to tax cuts coincided with Paul Ryan's determination to make that his last big legislative accomplishment.
The Tax Cuts and Jobs Act of 2017 had some benefit for pretty much everyone. It cut the corporate tax rate slightly and also improved the tax treatment of many small businesses and independent contractors. It lowered some marginal tax rates slightly, mitigated by also lowering the income level at which those rates apply and adopting a more slowly rising measure of inflation for future adjustments in those tax brackets. And it doubled the limit for application of estate taxes—though that limit had already been increased significantly by previous Republican Congresses.
You will never hear me say anything bad about a tax cut, and this one happened to benefit me personally. (See that part about small businesses and independent contractors.) Moreover, this tax reform certainly contributed to the good performance of the economy before COVID-19 hit.
Joe Biden and the Democrats will certainly try to roll it back and raise taxes. That will be one of the big legislative battles we can expect next year, and it will depend on whether they get a majority in the Senate, and if so, how big it is.
The best part of the Trump administration is one that I have discussed many times before: Donald Trump is the Great Non-Regulator.
Coming into office with a healthy contempt for meddlesome and intrusive government regulations—on every issue except for international trade, which he longs to manage personally—Trump issued a series of executive orders that significantly slowed down the activity of federal regulatory agencies.
I am generally skeptical of arguments that only Donald Trump could have achieved this or that. The appointment of federal judges, for example, would have been virtually identical under any of the other major Republican presidential candidates from 2016. But what Trump has done with regulation is somewhat unique. Typically, Republican candidates rail against intrusive regulations on the campaign trail, but when they get into office the permanent bureaucracy simply keeps grinding on and the Federal Register keeps on growing. Donald Trump demonstrated the extent to which halting or slowing down the regulatory state is directly within the president's power. That's a lesson to remember for the future.
For a global warming skeptic like me, Donald Trump has been the ideal president, appointing global warming skeptics to the EPA, withdrawing the US from the Paris Accords, and then ignoring the issue completely for the rest of his presidency. And he has done this virtually in secret. The only bright side to Donald Trump's penchant for picking fights and constantly getting into trouble is that hardly anyone has even talked about this aspect of his presidency, so no one has been able to start up a campaign to oppose it.
There is one other aspect of this anti-regulatory approach that deserves special mention.
I have not been impressed with the idea of Donald Trump as an effective fighter in the culture war, but one good thing he has done is a reversal of Obama-era Title IX rules that basically mandated kangaroo courts for sexual assault cases on college campuses. This change might actually survive his presidency, because even the New York Times recently admitted that the change "won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused."
But the reason why I haven't been impressed with most of Trump's culture war initiatives is that too many of them depend on employing the power of the executive branch to promote conservative ideas. Aside from being objectionable on its own terms, this means that Trump is trying to create a new power to influence the culture that will immediately fall into the hands of the left when the presidency changes hands.
Something similar applies to Trump's efforts to rein in regulation: They end the moment he loses the presidency and Joe Biden's people issue a tsunami of new regulations to make up for lost time.
This is the point I've been making since the beginning: There is a difference between non-regulation and de-regulation. Non-regulation is a temporary reprieve from meddlesome new rules, just because of the preferences of the man currently in office. This doesn't challenge the legitimacy of the sweeping and minute powers claimed by executive-branch agencies. It merely imposes a different opinion about how those powers should be used. Deregulation, by contrast, would require the president to work with Congress to permanently reduce the power of executive agencies to issue new regulations.
Donald Trump's regulatory reprieve has been very good so far as it goes, but it was always fated to be temporary and to be swept away the moment a Democrat is elected.
Are these achievements enough to justify Donald Trump's re-election? Well, this is just one side of the ledger, and there's a long list of things to put on the other side.
But as I said, it is likely that the election result is already decided, so the purpose of this list is to prepare us to preserve what is good from this administration once it is over. Voters have a tendency to want to throw out the baby with the bathwater, so we have to know what it is that's worth saving and prepare to make the argument for it.