The Education of Donald Trump

Slowly but surely the presidency of Donald Trump is being normalized.  By normalized it is

meant that the Trump presidency is increasingly being captured and confined by the institutional powers and realities of American and world politics.  This is something that Steve Bannon feared, and which both Trump’s supporters and distractors should recognize.

There is an old political science and political adage that declares that presidents have more authority and freedom to act internationally than they do domestically.  This is because while the structures of the Constitution–such as checks and balances and separation of powers–limit the domestic power of presidents, they are more free to act internationally, especially with either congressional acquiescence or affirmative grants of power.  This recognition that presidents have more autonomy internationally is rooted in famous Justice Robert Jackson concurrence in the 1952 Supreme Court case Youngstown Sheet & Tube v. Sawyer.  Yes, in many ways this dicta is correct constitutionally, but it misses something far more powerful when it comes to defining presidential authority; specifically the political and institutional constraints on presidents and how, as Stephen Skowronek argues in Presidential Leadership in Political Time, how history and context defines presidential power.

Back in 2008 during the US presidential elections when lecturing in Europe I was asked how the presidency of Barack Obama would differ from that of George Bush in the area of foreign policy.  I argued that the best predictor of a new president’s foreign policy was to look to his predecessor’s.  Presidents really have far less freedom to depart from the past than many think.  The foreign policy establishment is big and powerful in the US and it largely bipartisan.  Geo-political forces such as  the state of the world economy, the political interests of other nations, and the overall limits on US power and reach too further define what presidents can do.  Yes some may claim some presidents made major shifts–Nixon and China–but the changing geo-political role of China in the world made such a choice inevitable.

Obama proved that.  After making numerous promises, the Obama foreign policy was defined by choices made by Bush. The war on terror continued, troops remained in Afghanistan and Iraq, Gitmo was not closed, drone attacks persisted, and the US did not fundamentally change Middle East politics even after the Arab Spring opening because entrenched support for Israel did not change.  Even Obama’s effort to make an Asian pivot has had mixed results, and he was unsuccessful in making many changes in how to handle Syria and North Korea.  Yes Obama did make some marginal changes, but fundamentally more continuity with Bush than a break.

The same is now true with Trump.   Candidate Trump disagreed with almost all things Obama.  The Iran nuclear deal would be torn up.  Trump pledged a Mexican wall, declare China a currency manipulator and impose tariffs on their products.  NATO was obsolete, the Syrian policy wrong, Putin and Russia a friend,  and global engagement must be retracted to put America first.  Great rhetoric, but the reality is tht slowly the forces that constrained Obama are constraining Trump.  

One now sees a new Trump.  The bombing of Syria, while a departure perhaps from what Obama did, is something that Hillary Clinton and most Republicans and Democrats in Congress support.  It produced a rift with Russia that now leads Trump to muse that perhaps our relations with that country are the worst ever (they are not).    Moreover, despite tough talk, trump’s options with Syria are limited, as they are throughout the Middle East.  Expect no major change in politics toward Egypt and Israel, and do not expect any major break in addressing the Palestinian quest for a homeland.

NATO is good, and China will not be declared a currency manipulator, and, in fact, if they help Trump to contain North Korea’s nuclear program, he will give them a great trade deal.  This statement is recognition that despite the show of force the US is demonstrating in sending ships to North Korea, there is little he can do along to change the politics in that country.  Gitmo will not be closed, the policy toward Cuba not reversed, and even the dropping of MOAB–the mother of all bombs–on Afghanistan–it was a policy in the works under the Obama administration.    Trump’s enhanced deportation policy and extreme vetting looks more and more like a variation of what Obama did–partly courtesy of the federal courts–and there will be no shift in the drone war

Nearly 90 days into the Trump presidency one can already seen more continuity with Obama than breaks.  Yes there are still rough edges, yes there appears to be no Trump grand strategy, but that lives a void to be filled by the bureaucracy and foreign policy establishment.  All this is exacerbated by the fact that Trump has not filled many key State and foreign policy positions, but that only means that the weight of the status quois filling the void.

The real sign of Donald Trump’s education or normalizing was the removal of Steve Bannon from the National Security Council.  Bannon saw the power of the bureaucracy and wanted to smash it.  Instead it smashed him and may soon lead to his ouster from the Trump administration in total.  That was a Trump presidency turning point.

It seemed just a few weeks ago people were talking of a failed Trump presidency, impeachment, or a major international crisis.   Yet increasingly likely is that an incompetent Trump will create the space for the bureaucracy to take over in the realm of foreign policy, for good or bad, and to the fear of delight of his supporters and detractors.

Obama's Constitution

            Barack Obama’s constitutionalism is not quite what anyone would have expected.  Far from embracing bold liberal notions of the Constitution and the Bill of Rights, much of his legal philosophy seems at home with his predecessor George Bush and Republicans.

            Ostensibly a liberal Democrat, one would have thought that Barack Obama would have been a civil libertarian, respectful of individual rights.  One would have also expected that he would have sought to use national power to its fullest to fulfill his agenda.  As a lawyer and former constitutional law professor, the belief was that he understood the law and would see how moving quickly and aggressively to fill the federal bench with his judicial nominees would be critical to securing his legal agenda and undoing the legal legacy that George Bush left.

            Such expectations were nurtured by presidential candidate Obama.  He sharply criticized the Bush administration for its support of torture and disregard for international law.  He promised to close Guantanamo Bay, and otherwise end the illegal operations of the war on terror and the presidential excesses of his predecessor.  Yet Obama has not turned out to be a constitutional liberal.

            To his credit, in the opening days of his presidency Obama did move to undo many of the practices of the Bush administration that he campaigned against.  He repealed legal opinions supporting torture and in his inaugural speech he committed his administration to transferring prisoners out of Gitmo and to closing the facility.  But Congress fought him on this initiative and Republicans have successfully stalled or filibustered judicial and other nominees.  But even accepting both as excuses, Obama’s constitutionalism is surprising.

            The Obama administration insists that it is within its constitutional authority to use drones to kill American citizens and to intercept and track telephone calls and internet traffic under the Foreign Intelligence Surveillance Act and through the NSA Prism program.  Obama administration legal memos, some of which have yet to come to light, so far seem to rely upon the same assertions  about extra-constitutional presidential power as commander-in-chief or upon the same congressional ascent under the post-9/11 Authorization to Use Military Force that Bush invoked. The legal memo on drones makes the same legal contortions about presidential power that the John Yoo memo did when it came to torture.  Obama has used these legal rationales and the most extensive authority given to him under the Patriot Act and FISA to justify policies disregarding basic civil rights and liberties.

            His administration justifies the killing of American citizens without proof of guilt in court.  There is no regard to the Fourth Amendment rights against use of excessive force, no due process to contest a decision to make unilateral execution decisions.  His snooping on American citizens is done without warrant, or at least one with proof of particularized suspicion as required under the Fourth Amendment.  His administration's initial refusal to read the Boston Marathon Bomber his Miranda rights exploited a questionable legal loophole and ignored the Fifth Amendment.  And do not forget that the IRS targeting of political groups is also a violation of the First Amendment.

            But additionally the Obama administration has rode roughshod over many other parts of the Constitution.  Where is the respect for the First Amendment freedom of the press when comes to getting secret warrants to search reporters telephone conversations because they reported on news embarrassing to the Obama Administration?  Or where is the respect for First Amendment freedom of speech when it comes to one of the most aggressive administrations on record when it comes to prosecuting leaks and whistleblowers?

            But his constitutional contempt is matched by timidity.  Obama now supports same-sex marriage, but only as he was beginning to run for a second term in office and when the tide of public opinion had apparently shifted on the subject.  It took years for the Obama administration to reach the conclusion that don’t ask, don’t tell was unconstitutional but he never did anything to fight its enforcement.  The same with DOMA–he did eventually argue that it was unconstitutional but continued to enforce the law.  Even in his administration’s arguments before the Supreme Court, Obama has never embraced a view of the Equal Protection clause that fully argues that bans on same-sex marriage are unconstitutional. Nor have we seen Obama argue that the death penalty is unconstitutional, and we have not seen him take an aggressive stance in Court to argue that the Second Amendment decisions holding for an individual right to bear arms were wrong and should be reversed.

            Even with the Affordable Care Act–his signature issue–he has failed to act boldly.  His central justification for its constitutionality rested on the Commerce clause–an argument the Supreme Court ultimately rejected.   In passing the Act Obama capitulated on abortion rights and since its passage has failed to push aggressively on contraception, including until recently his refusal to go along with allowing women under 18 the right to purchase the morning after pill.  It took a federal court ruling his policy to be arbitrary and capricious to get him to change his mind.

            Finally, the Obama administration has moved slowly on judicial appointments, generally eschewing efforts to challenge Senate Republicans to reject his nominees who, for the most part, have been centrists and not liberals.

            Obama’s Constitution is hardly liberal.  It is supportive of strong presidential power resting upon dubious constitutional claims of unilateral authority to act.  It is a constitutionalism devoid of serious respect for individual rights, supportive of the national security state, and surveillance ahead of privacy.  It is a constitutionalism not of the kind one would have expected from him, but instead one that bears more resemblance to that of George Bush than it does of the liberal Democrat some thought he was.

Liberalism in Retreat--The Conservatism of Barack Obama

It may very well be that the legacy of Barack Obama is that he will destroy whatever is left of the liberalism of the Democratic Party.  At least this is the conclusion one can reach given his recent budget proposals and his continued advocacy for the use of drone warfare.  In so many ways, Obama looks even more conservative than his adversaries on the right.

By now it is common place to assert that the Democrats are the party of liberalism.  It is the party of FDR and JFK, of the New Deal and the Great Society, civil rights and taxes, abortion and gay rights, for the rights of the accused and against guns. This is the party that first Richard Nixon and then Ronald Reagan stereotyped and successfully ran against.  These two elections resulted in what was once thought to be a political realignment in American politics as Reagan Democrats and the once solid south moved into the column of the Republican Party. It was barely a generation ago that  critics hailed the demise of the Democrats as too liberal.  Between 1968 and 1988 Democrats won only one presidential contest, they lost control of the Senate in 1980, and they looked doomed.  Throw in the 1994 congressional losses and then again the beatings they took in 2002 and one could  have put RIP next to the Democratic Party.

But along came Bill Clinton.  He along with the Democratic Leadership Council contended that the party had become too liberal and it needed to move to the center.  And it did.  Clinton was a pro-death penalty president who signed DOMA, Don’t Ask, Don’t Tell, welfare reform, and limits on habeas corpus for prisoners.  He dramatically moved the Democrats to the center, as the story goes, and the result was that his party again became more electable.

But politics is not static.  While Democrats moved to the right, the Republicans shifted even further.  First with Bush and then with the TEA Party.  The center of American political gravity on many issues moved rightward.  And so has Barack Obama.

Initially though, Obama had everyone convinced that he was a liberal.  Maybe it was his race, or his appeal to a new generation of voters.  But back in 2008 many thought of him as the liberal candidate in the race, at least compared to Senator Clinton.  But compared to John Edwards and Dennis Kucinich he was a moderate.  That juxtaposition probably helped him in the battle for the Democratic Party nomination, but also his rhetoric at times sound progressive, especially when he talked of health care reform, gay rights, or the rights of workers.  His rhetoric sounded progressive, at least in comparison to the Bush era values as he spoke of closing Gitmo and ending the war in Iraq.  Even his 2009 inaugural speech trumpeted a liberal theme, but sadly the gap between rhetoric and reality grew.

Obama did call for major expansion of health care reform but he rejected calls for the more liberal single payer system that Senator Ted Kennedy and other liberals wanted.  He opted for the Republican solution–Romneycare–the Massachusetts model that the GOP and his 2012 presidential opponent once embraced.  Yes Obama also did end the war in Iraq but he also promised to commit  more troops to Afghanistan–transforming Bush’s war to his.  Additionally, Obama turned his back on many of his supporters.  He never supported the Employee Free Choice Act, a reform sought by labor unions to update the Wagner Act, he did not push for repeal of “Don’t Ask, Don’t Tell until  halfway through his first term, only getting it by capitulating on an extension of the Bush era tax cuts.  His health care reforms capitulated on abortion and reproductive freedoms for women, and he has never really pushed hard on global warming and the environment.  Finally, Obama continued  the Bush era initiatives to bail out the banks but not the home owners and Dodd-Frank, the major financial reform legislation, hardly will change banking behavior and discourage them from more risking lending in future.

One cannot deny that Obama has accomplished a lot and he deserves praise for all of that.  He has faced a hostile Congress, but do not forget that for the first two years he had significant Democratic majorities.  But with those majorities he has infuriated many in his party but a horrible set of negotiating skills.  He seems to give in, not negotiate.

But now there is a second term.  He began his quest by saying he had evolved on gay marriage.  He now supported it–an act of bravery when public opinion had already shifted.  He says he opposes the Defense of Marriage Act (DOMA) and his administration argued against its constitutionality before the Supreme Court, but his administration still enforces the law, prompting Chief Justice Roberts to exclaim that the President should have the courage of his convictions not to enforce the law if he thinks it is unconstitutional.

Obama’s second inaugural and his 2013 State of the Union speeches again sounded liberal.  He hit the themes of gay rights, guns, the environment, and economic justice.  Yet once again the gap between rhetoric and performance is wide.  Obama ended 2012 by securing tax hikes on the top earners and preserving it for the rest.  Yet he let the payroll tax expire, resulting in more of us paying more overall taxes now than before.

Obama continues to pursue economic policies that sound more conservative than liberal. His budget proposals to cut Social Security and Medicare give him little room to negotiate with Republicans.  Given his starting position, all he can do is move further to the right.  Sequestration was partially Obama’s idea and the percentage of government spending going to discretionary programs is lower now than it has been in a generation.  Obama has embraced austerity and deficit reduction as goals, again ideas favored by Republicans.  When push comes to shove, don’t be surprised if Obama endorses the Keystone Pipeline as an important jobs initiative for his administration.

But alas, there may even be one place where Republicans are to the left of Obama–drone warfare.  In a legal analysis as tortured as the memos drafted by the Bush administration, the Obama administration has endorsed presidential power to use drones in warfare, even up to the point of killing American citizens outside the United States.  Such brazen disregard for both domestic and international law must bring a smile to a Dick Cheney (who embraced gay marriage well before Obama).

How anyone can conclude that Obama is a liberal is beyond comprehension.  Nixon was more liberal, as was Eisenhower.  Obama’s liberal legacy is gone and now the question becomes how much of liberalism will he give away in his remaining second term.