Michael1942's Blog

Nov 9, 2016 9:56 AM EST
( Updated
Nov 9, 2016 1:52 PM EST)
By
Noah Feldman
It’s all about the Constitution now. Republicans will control the White House and both chambers of Congress. They will be able to pass — or repeal — their preferred laws, because that’s democracy. But to the Donald Trump opponents worried about what his presidency will bring, know this: There will still be limits to congressional or executive action, limits dictated by the Constitution and enforceable by the courts. The Constitution is designed to resist the tyranny of the majority. James Madison’s machine of constitutional protection is about to kick into gear.
The Bill of Rights and the principle of equal protection give the main limits on government action, but the list of enumerated rights alone doesn’t capture the purpose of the system. Most crucially, free speech and equal protection are supposed to preserve the capacity of electoral losers — Democrats this time around — to continue to participate in government.
That means Trump and the Republican Party can’t stop their political opponents from expressing their views. They can’t jail opponents in violation of habeas corpus. And they can’t adopt laws that discriminate on the basis of race or sex or religion or national origin.
The good news is that the courts as presently configured are overwhelmingly likely to enforce these restrictions. Start with the First Amendment jurisprudence. Today’s judicial conservatives are more likely to be free-speech absolutists than judicial liberals. I have great confidence that Supreme Court Justice Clarence Thomas, for example, would continue to apply his strongly speech-protectionist reading of the free-speech clause against laws passed by a Republican Congress, and that he would have no trouble getting a majority for his approach.
As for equal protection, the deepest judicial divisions for several decades have been over affirmative action, which conservatives say amounts to prohibited discrimination. There’s been much less disagreement about whether laws that facially discriminate on the basis of race are permitted: The consensus is that they are not unless justified by a compelling interest and narrowly tailored to it. A Republican-passed law that discriminated overtly would almost certainly be struck down.
True, the justices have sometimes divided about whether laws that are facially race-neutral are actually discriminatory. It might be hard to get consensus about such laws. But once the Supreme Court is back to full strength with the appointment and confirmation of a conservative to fill Antonin Scalia’s seat, the swing vote is going to be Justice Anthony Kennedy once again. And as the gay-rights cases demonstrated, Kennedy is acutely attuned to the value of human dignity. He’s also made it extremely clear that he has no interest in reversing Roe v. Wade.
If Trump gets to replace a liberal justice — Ruth Bader Ginsburg (age 83) or Stephen Breyer (78) — then the court would have an outright conservative majority. Conceivably, that could lead to revisiting decisions like Roe v. Wade or the gay-marriage decision, Obergefell v. Hodges.
But it’s extremely unlikely that the court would fundamentally roll back either of these rights. Despite its unpopularity, Roe has proved stunningly durable over the 43 (!) years since it was decided. Reversing it at this point would mark the court as wildly disrespectful of precedent. Chief Justice John Roberts has repeatedly signaled that he considers such extreme activism to be distasteful. And as a practical political matter, a reversal of Roe would fuel backlash against Republican candidates.
Gay marriage is, of course, a much newer right, and it would be easier for a conservative majority to overturn Obergefell, which has not yet acquired the patina of precedent. Yet the small-c conservative aspect of the Obergefell decision, with its celebration of the bourgeois institution of marriage, renders it much safer than might otherwise be thought. There would also be the tremendous practical problem of what to do about thousands of gay people who are already married — not to mention the further practical difficulties associated with gay marriage being recognized in some states but not others.
This is not to deny that a conservative Supreme Court could render strongly conservative decisions on a wide range of issues. It could, and it would.
Rather, the point is that even a conservative court would police the boundaries of legislation to preserve the basic structures of fundamental democratic rights. It might not do so aggressively, but it would still impose limits on Congress and the president.
Why am I so confident the courts would play their designated role of protecting the minority from the tyranny of the majority? The answer lies in the power of the institutional culture of the judiciary and of the rule of law.
There are many controversial issues in American legal thought, and there exist strongly conservative views on all of them. But even the most conservative judges and lawyers believe today that one purpose of the Constitution is to protect against majority oppression and that it’s the job of judges to make it do so.
There is good reason for legal conservatives to celebrate the election results and for legal liberals to deplore them. And if the court goes conservative, there will be plenty of opportunities for conservative justices to push their agenda.
The crucial takeaway, however, is that the basic rights and the rule of law aren’t going to disappear because Donald Trump was elected. The Constitution was built for our situation. It will endure, whatever challenges it may face.
(Corrects age of Ruth Bader Ginsburg in seventh paragraph. Corrects first paragraph to remove inaccurate reference to the last time Republicans controlled the House, Senate and White House.)
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net
To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.

The possible outcome  of a Trump win is explained below. MA

Henry Blodget, Business Insider Fri, Nov 4 6:41 AM PDT

In a few days, Americans may wake up to learn that they’ve elected President Trump.
The reality of this would likely come as a shock — just as the reality of Brexit came as a shock in the UK, where some people were apparently startled to realize what they had voted for. (Recent polls also suggest that, now that they’ve realized it, they regret it).
What would the consequences of electing Donald Trump president actually be? What would happen? What would President Trump actually do?
Given that a Trump presidency is now a very real possibility, it’s worth thinking through.
Based on what we’ve heard from Trump and his campaign over the past 18 months, as well as a close reading of experts like Evan Osnos of The New Yorker — who wrote a great article on the topic — here are some of my assumptions about a theoretical Trump presidency.
The smaller stuff:
President Trump will sign executive orders “erasing” as much of Obama’s presidency as possible and tossing other bones to his supporters. These will likely include withdrawing the US from the Paris emissions accord, loosening background checks on people buying guns, restarting the Keystone Pipeline process, ordering investigations of trade practices, halting the flow of Syrian refugees, and more. (See Evan Osnos for more.)
President Trump will reinstate methods considered torture under international laws as intelligence-gathering tools. He will not call it “torture.” He will describe it as the US finally getting tough (“an eye for an eye”). Trump will likely get pushback on this from senior intelligence and military officials. If the officials refuse to follow his order, Trump will fire them and replace them with generals and officials whose primary value is loyalty to Trump. President Trump will also appoint loyalists to as many of the 4,000 appointed positions he controls as possible.
President Trump will immediately “bomb the hell out of ISIS” — somewhere. This bombing may be no different than the bombing the US has been doing for years. President Trump will tout it as a major new offensive and extol its effectiveness and toughness. He will boast about this show of strength compared with the weakness and stupidity of the Obama administration. He will come to enjoy having the power to command the world’s most powerful military.
President Trump will quickly work with Congress to “repeal Obamacare.” If Congress blocks him on this, he will attack, shame, and bully key members publicly, while cutting deals behind the scenes. If President Trump is smart, he and his GOP allies will not actually repeal Obamacare because Americans like many features of it and because they have nothing to replace it with. They will just make changes to it that begin to fix some of its problems.
President Trump will continue to use the same rhetorical style he has used throughout the campaign. Namely, he will lie, bully, shame, exaggerate, insult, and otherwise throw prior concepts of acting presidential into the dumpster. After a few months of disgust and alarm, Americans and other citizens of the world will get used to this, just as they have his campaign rhetoric.
President Trump will also maintain the relationship to the truth that he has had throughout his campaign. Namely, he will cite actual facts and truth only when they help him. When the truth is inconvenient, President Trump will lie, deny, attack and threaten truth-tellers, speak in platitudes, and change the subject. The Trump administration will likely be one of the most secretive, most dishonest, and least transparent in modern history.
President Trump will reward “terrific” people and punish “terrible” people. The common attribute of “terrific” people will be that they support President Trump. The common attribute of the “terrible” people will be that they oppose President Trump. After a bruising election, President Trump will have lots of rewards to provide and scores to settle.
President Trump will announce that he is renegotiating NAFTA and other key US trade agreements and suspend potential participation in the Trans-Pacific Partnership. He will make minor changes to these trade deals and announce that he has replaced them with “great deals.” He will tout any job growth that follows these changes as a direct result of these deals. President Trump will also likely slap high tariffs on Chinese imports to show that he is serious about “winning” and bringing jobs back. China will retaliate. The resulting limited trade war will likely be disruptive and bad for business in both countries. President Trump will say it is working great.
President Trump will personally unveil plans for his southern border wall. He will deliver the press conference announcing it and show scale models of it. Some sections of this wall may eventually be built. American taxpayers will pay for them. Trump will boast about how the wall is responsible for job creation and reduced crime. He will also increase the size of America’s deportation force and tout the number of people it deports.
President Trump will propose $1 trillion of new spending on US infrastructure. Congress will support at least some of this. These projects will be unambiguously good for the country, even as they increase US federal debt. President Trump will also maintain Social Security and Medicare. He will pass a tax cut, of which most of the benefits will go to the wealthy. He will close the “carried interest tax loophole,” which is one of the most egregious tax loopholes in the whole tax code. With the exception of the tax cut and deficit increase, all of these moves will be good for America.
President Trump will never release his tax returns.

The bigger stuff:
President Trump will mishandle a tricky geopolitical or military situation — with grave and potentially catastrophic consequences. Three obvious candidates involve the Middle East, North Korea, and China. The most likely candidate, meanwhile, is Russia. Trump will consider his personal relationship with Putin a higher priority than stopping Russia’s territorial advances or supporting US allies. Putin already knows this and will take advantage of it. At some point, Putin will likely make a move into the rest of Ukraine or the Baltics. President Trump will either not respond, thus undermining NATO, or respond slowly or unwisely. He might also be so enraged by this personal betrayal by Putin that he might do something crazy, like nuclear saber rattling.
President Trump will try to modify the First Amendment and restrict freedom of the press. He will initially do this by rewarding supportive news organizations and reporters and savaging critical ones. If this does not stifle criticism of him or his administration, Trump will increase his harassment of critics by ordering investigations and encouraging supporters to boycott them. President Trump will call on his attorney general to threaten news organizations with criminal indictments and force them to turn over their sources. He will also do this on behalf of allies in Congress and organizations and people who support him, thus increasing support for actual changes in law.
President Trump will respond to terror attacks by barring Muslims from entering the country and increasing surveillance and profiling of Muslims in the US. If the attacks continue, President Trump will take another step, creating Muslim registration and/or camps in the US. President Trump will also respond to attacks by obliterating cities in Syria, Iraq, and other countries to punish “radical Islamic terrorists” and their families (and hundreds of thousands of other people). More broadly, President Trump’s bigoted rhetoric will likely inflame racial and religious tensions in the US, leading to more violence and protests. For many Trump supporters, making America “great” again means making America “white and Christian” again, and even if President Trump does not actively support this, he’ll do little to discourage it. (If the attack is just the usual generic US gun massacre, meanwhile, President Trump will extol the need for more guns for self-defense and tougher policing.)
President Trump will get impatient with the “checks and balances” on presidential power and try to expand the power of the presidency. If the economy stays solid and there are no major terrorist attacks or geopolitical crises, this will be difficult to do. If the economy deteriorates or there is a crisis, however, it will be easier. It is important to remember that, if elected, Trump will already have far more power and public support than famous dictators had when they came to power. (For example, see: “How Hitler went from a fringe politician to a dictator.”)
Other consequences:
The stock market will drop 10-20% (for starters). A Trump presidency will significantly increase risk and uncertainty. That unnerves investors and business decision-makers. US companies will temporarily “freeze” plans while they try to figure out what President Trump is likely to do. This will likely temporarily slow economic growth. President Trump will blame the Obama administration for this and use it to demand emergency action from Congress. Trump’s explicit attacks on many American companies — Ford, Amazon, Macy’s, Nabisco, Apple — and promises to force some of these companies to move some manufacturing back to America will also unnerve decision-makers. Almost no major CEOs have supported Trump, and many have spoken out against him. These CEOs know that Trump will take this personally.
The fiscal deficit and debt will balloon. Trump’s proposed tax cuts for the rich will not stimulate growth, just as the Bush tax cuts did not stimulate growth (because taxes on the wealthy are not actually stifling growth — what is stifling growth is the lack of middle-class spending power). The tax cut will, however, increase the deficit and accelerate the growth of federal debt. President Trump will blame this on Congress and the Obama administration.
At some point in President Trump’s first term, there will be a major recession, and the stock market will drop 30-50% from the peak. President Trump’s policies may well trigger this recession. Trade wars, for example, generally hurt economies and lead to job losses. Whatever happens, President Trump will blame it on his opponents and use it to try to expand his own power (see above). Widespread economic misery will make this easier.
Personally, I hope most of this doesn’t happen. I hope that President Trump would be the president that some of his smarter supporters expect him to be — not the mean, petty, reckless, and uninformed proto-tyrant he sounds like, but a reasonable, effective pragmatist who just enjoys entertaining crowds by saying outrageous and offensive things and otherwise acting like a boor.
But given how consistent Trump has been in his actions and pronouncements over the past 18 months, I think it’s more likely that what we’ve seen is what we would get.

The Opinion Pages | Contributing Opinion Writer
By J. D. VANCESEPT. 22, 2016

Credit Angie Wang
It was the awkward comment heard round the world. At a fund-raiser earlier this month, the Democratic presidential nominee, Hillary Clinton, divided the supporters of her Republican opponent Donald J. Trump into two even groups. One consisted of good, if alienated and dispossessed, people. But the other half goes into a “basket of deplorables,” she said. “The racist, sexist, homophobic, xenophobic, Islamophobic — you name it.”
The ensuing reaction to her comments is a case study in everything wrong with our political discourse. Mr. Trump — who still hasn’t apologized for suggesting that a disproportionate share of Mexican immigrants are rapists and criminals — demanded an apology. Meanwhile, many on the left came to her defense: The remark might have been politically inept, many said, but it was true.
These commentators often base their arguments on polls that paint many Republicans in an unflattering light: About one-third of conservatives believe that Barack Obama is a Muslim, and more than half doubt whether he was born in the United States. According to one Reuters poll, about half of Mr. Trump’s supporters say that blacks are “more violent” than whites, while approximately 40 percent see blacks as “lazier” than other races.
These views are undoubtedly deplorable, and we all have a responsibility to confront them. But if Mrs. Clinton had said that half of Mr. Trump’s supporters hold some prejudicial views and left it there, we probably wouldn’t be talking about the comment today. Her sin was to collapse millions of people — from former Klansmen like David Duke to a struggling coal miner with some unacceptable opinions — into the same group of social outcasts.
It’s difficult in the abstract to appreciate that those with morally objectionable viewpoints can still be good people. This perhaps explains why Mrs. Clinton showed considerably less charity than did Mr. Obama as a candidate in a widely praised 2008 speech on race. In one particularly personal passage, he spoke about his white grandmother — an imperfect, but fundamentally good, woman, “a woman who helped raise me, a woman who sacrificed again and again for me, a woman who loves me as much as she loves anything in this world, but a woman who once confessed her fear of black men who passed by her on the street, and who on more than one occasion has uttered racial or ethnic stereotypes that made me cringe.”
If a pollster had called Mr. Obama’s grandmother and asked her questions about race, religion and sexuality, she almost certainly would have proffered at least one prejudicial view. The data tells us that she wouldn’t be alone. In a recent poll, about 40 percent of Democratic voters supported temporarily barring Muslims from entering the country. Large shares of black voters express some uneasiness with homosexual behavior, an opinion common among religious people of all races but undoubtedly unwelcome in cosmopolitan elite circles of the Democratic Party. The same poll that found that 40 percent of Mr. Trump’s supporters viewed blacks as lazier revealed that 25 percent of Mrs. Clinton’s supporters believed the same thing. Perhaps these people should also join Mrs. Clinton’s deplorable basket.
There’s no reason to limit basket-worthiness to those with explicit prejudices. For decades, scholars have studied the ways in which implicit biases affect how we perceive other people in this multiethnic society of ours. The data consistently shows that about 90 percent of us possess some implicit prejudices — and, unsurprisingly, people typically favor their own group. Layer on top of that the many people unwilling to speak about their prejudices with a pollster, and a picture emerges of a nation where a significant majority of the country harbors some type of bias.

There are many ways to confront the people of that nation in all its complexity. We can ignore that these biases exist, and pretend that our uniquely diverse society need never address the difficult questions posed by that diversity. This is the path chosen by far too many of my fellow conservatives.
We can deem a significant chunk of our populace unrepentant bigots, which appears to be the strategy of Mrs. Clinton and much of the left.
Or we can recognize that most of us fall into another basket altogether: One where prejudice — even implicit — coexists with incredible compassion and decency. In that basket is the black preacher who may view homosexuality as a little icky even as he lovingly ministers to struggling gay members of his church. The adoptive parent of a child born in Asia, who pours her heart and soul into her child’s well-being even as she tells a pollster that she doesn’t much care about America’s experience with Japanese internment. And in that basket is a white grandmother who speaks ill of black people even as she gives her beloved African-American grandson the emotional support and love that enable him to become the president of all Americans.
We can and should recognize the bad in that basket even as we celebrate the good. We must have the courage to confront dreadful views even in the people we love the most. But that’s difficult to do when we cast large segments of our fellow citizens into a basket to be condemned and disparaged, judging them even as we ignore that many of their deplorable traits exist in us, too.

J. D. Vance is the author of “Hillbilly Elegy” and a contributing opinion writer