Neil Buchanan: Ways to Stop Trump in his Tracks

This article first appeared on the Verdict site.

Less than a month into his presidency, Donald Trump and his associates seem to be doing everything they can do to undermine their own authority. Even so, their self-destructive impulses will not prevent them from doing real damage unless other powerful forces step forward to stop them.

Ultimately, all such resistance starts with the American people themselves. Unless there is evidence of sustained rejection of everything that Trump wants to accomplish, it will be far too easy for every decision maker to take the easy way out. It has rarely been more important to remind ourselves that there is strength in numbers.

We have, at least in theory, plenty of institutions that are able to resist Trump's would-be dictatorship, most of which have already sprung into action. At the federal level, all three branches of government provide levers of countervailing power to neutralize the White House. In addition, state and local governments can push back against Trump and move in different directions.

The press, the legal profession and other private and public institutions (especially the universities) also possess important powers that—separately and together—can and must be used to prevent the nation's fateful descent into tyranny.

Will it all be enough? The powers of the presidency are awesome, and there are plenty of people who would welcome what would amount to a Trump monarchy. Even at this early stage, it is useful to take a moment to assess where resistance to Trump is strongest and where it needs to be stepped up.

As I noted a moment ago, the still-new Trump administration has been busily handing ammunition to its opponents on a daily, or even hourly, basis. Taking as little as a one-day break from reading the news can result in a sense of disorientation upon re-entry, with an endless string of oh-my-god-is-this-really-happening moments that become old news within hours because of other outrages taking over the news cycle. It can feel almost impossible to catch up.

The biggest story to date has been the resignation of former National Security Adviser Michael Flynn. Because that debacle was part of a larger narrative having to do with Trump's suspiciously close ties to Russia, this could be the beginning of something very big—perhaps even a "cancer on the presidency," which could end up being another Watergate.

As a political gift to his opponents, Trump's mess of an administration cannot be overstated. His supporters might be willing to forgive almost everything their dear leader does or says, and they might well follow his lead and believe that the problem is the leaks and not the wrongdoing (another Nixonian overtone).

Even so, Americans have a long-standing fear of Russia and everything associated with it. For example, in the immediate postmortems following the November election, I wrote that the people who think Bernie Sanders could have beaten Trump misunderstood how easy it would have been to red-bait Sanders by using his self-labeling as a "democratic socialist" against him.

Sanders is no communist, of course, but Republicans would have convinced millions of people that he is. In the American public's mind, communism and socialism are the same thing, and it does not matter whether you add a nice word like democratic to the mix.

Vladimir Putin's Russia is not communist either. The same word-association game, however, can easily be brought into play. Communist, enemy, nuclear annihilation, traitor, un-American, Russia, Trump. And because most Republicans are standing with Trump (so far), they can be branded as fellow travelers.

For example, a colleague commented to me recently that Democrats now have the opportunity to tie every Republican initiative to Russian meddling. "You want to take away health care from millions of Americans? That's just what we would expect from people who want to destabilize our country and help Putin!"

Maybe the Trump-era equivalent of red-baiting will be called orange-baiting, turning everything into a test of American patriotism by impugning the motives of those who can be described as giving Trump and Putin what they want.

Resistance in the Executive Branch

During the postelection transition period, I argued that the federal bureaucracy could be a bulwark for freedom. Federal workers are not only mission driven—having chosen careers as civil servants out of a sense of public duty (given the reality that they will never get rich as government employees)—but they are also deeply committed to following proper procedures.

This means that attempts by Trump or his political minions to trample the rule of law will come up against The Bureaucracy. In the popular imagination, the label bureaucrat is typically applied to someone who makes life needlessly difficult. In Trump's world, we should be happy to see bureaucrats—that is, people who are committed to public service—making the lives of Trump's true believers as difficult as possible.

After all, Trump's first few weeks have been marked by his efforts to force changes in the way that the government issues, interprets and enforces rules. Would-be dictators want to be able to snap their fingers and change everything. Federal employees know that the existing rules came into existence as a result of extensive deliberation, which means that casually tossing them aside risks creating all kinds of unintended consequences.

Not surprisingly, there have been reports in recent weeks of efforts by federal employees to resist Trump and his appointees' efforts to undermine the rule of law. Both The Washington Post and The New York Times, for example, have interviewed federal employees who have been trying to figure out how to respond to the unprecedented dangers of the new regime.

There are obvious limits to this strategy, however. First, no matter how much federal workers believe in the "stay in your lane!" rule—that is, the norm by which federal employees with responsibility for one area of law or policy not interfere with those who work in other areas—there is a limit to how much a person can resist, as well as who they can resist.

The outstanding example of this phenomenon continues to be former Vice President Dick Cheney's successful pressure on intelligence analysts to give him the answers that he wanted in order to justify the Iraq War. When someone shameless enough and far enough up the food chain gets involved, civil servants are easily swept aside.

Second, federal employees know there are strict limits on their activities that might be construed as political activity, and they also reasonably fear termination proceedings under contrived accusations of insubordination and similar pretexts. The Post and Times articles linked above describe in some detail how federal workers are engaging in crash courses to determine the limits of their ability to say no.

Third, the rules under which the federal bureaucracy works can be changed. Even though it is not as easy to change those rules as Trump evidently thinks it is, the executive branch ultimately exists to carry out the will of Congress as expressed in duly enacted laws.

Therefore, if Congress decides to change the law, there is nothing that executive-agency workers can do. If, for example, Energy Secretary Rick Perry convinces his Republican friends in Congress to finally eliminate his department (whether or not he can remember its name), then there will be no more Department of Energy.

Most of what the Department of Energy does is so essential that its duties would simply migrate to other departments. In fact, this is true of essentially all federal agencies. After all, when the Department of Homeland Security was created after the 9/11 attacks, it was not necessary to hire many new workers, because existing agencies and offices were simply moved from other departments. It would work the same in reverse.

More substantively, Congress can also change the laws that govern what executive bureaucrats do. Federal food-safety inspectors cannot continue to do what they do if Congress decides that the magic of the free market will prevent tainted food from poisoning our citizens. (But that would also present another opportunity for Democrats to accuse Republicans of undermining America, allowing Russia-loving saboteurs to "sap and impurify all of our precious bodily fluids.")

Changing the laws governing the employment protections of federal workers would also allow Trump to get his way. Former House Speaker Newt Gingrich, who has suggested the creation of a new Un-American Activities Committee to intimidate dissent in Trump's America, recently said that Trump "may have to clean out the Justice Department because there are so many left-wingers there. State is even worse."

Of course, what Gingrich describes as left-wing activity is in fact the efforts of people to carry out the law in good faith, but even so his fellow Republicans ultimately have the power to make it easier to fire federal employees. Civil service protections—which protect Republican-leaning workers in Democratic administrations too—are a creation of federal law, which Republicans can change.

If Republicans want to return to pure patronage in federal employment, they have the votes to make it happen. And they just might be shameless enough to do it. Unless and until they do so, however, the federal executive workforce will continue to be an important countervailing force against Trump's lawlessness.

Resistance in the Judicial Branch

Any executive-level victories for the voices of reason are likely to be quiet, because the federal workers who insist on obeying the law will be preventing bad things from happening (unless Trump decides to make a public spectacle of it, which is always a possibility), rather than doing something newsworthy. It will be difficult to acknowledge, or even to know about, these acts of courage.

By contrast, the most high-profile showdown of the Trump era to date has played out in the courts. Federal judges who were placed on the bench by both Democratic and Republican presidents have fulfilled their constitutional role by reminding the president that his powers are limited.

The courts are likely to be the most-effective avenue by which state and local governments, as well as the press and the professions, will thwart Trump's efforts. Indeed, the Ninth Circuit's decision regarding Trump's anti-Muslim immigration ban was the result of a challenge that was brought by two state governments.

This is one of the reasons that I am proud to be a member of the legal community. The courts were created to prevent the raw exercise of power. If all we wanted was the stronger party to win every dispute, we would not need the courts; in that case, by definition, the strong could dominate the weak.

That does not mean that the weaker party will win every case, of course. Why would it? But the courts exist to make it possible for reason to win against muscle, for right to defeat might.

And that is precisely what happened when Trump tried to impose a hateful (and legally embarrassing) executive order on people who have already proved (through extensive vetting) that they will be good Americans.

Again, however, the power of the courts to oppose Trump is hardly absolute. Courts have limited time and resources, and it is virtually impossible to stop everything that Trump's people will attempt to do as they turn his tweeted whims into executive actions.

Moreover, Trump and the Republicans will have the opportunity to appoint friendly judges to the courts, to join those who currently stand ready to side with him over the Constitution. If Trump stays in office for even one term, he will have the opportunity to appoint hundreds of judges.

Even when Trump loses in court, there are two ways in which his people can respond. One is for Trump to simply act like a tyrant and ignore the courts, claiming executive power to do whatever he wants. We should not be surprised if he does exactly that, and it will be important to resist.

The more subtle approach is for Trump to interpret every legal ruling as narrowly as possible; for example, by saying that a ruling applies only to the named plaintiffs in a case and carries no precedential value.

The courts will therefore be essential in resisting Trump, but they might not be enough.

Resistance in the Legislative Branch?

In some ways, this column amounts to a statement of hope. Between the federal workforce and the courts (through which others can take action), current law and the U.S. Constitution provide powerful means by which the large majority of Americans who never voted for Trump can prevent him from crowning himself the new emperor.

Notably missing from this analysis, however, is the other branch of government. Faced with an existential threat to the nation's existence, we really need all hands on deck. Congress must step up.

So far, that is not happening. Senate Majority Leader Mitch McConnell said recently that he is perfectly happy with what Trump is doing, blandly (if a bit defensively) describing Trump's actions as "right-of-center things that we would have hoped a new Republican president would have done."

In short, Republicans are thus far willing to pretend that Trump's administration is not in utter chaos because they have figured out that he will back them on policy. As I wrote recently, Trump has essentially become no different from Mike Pence and Paul Ryan on policy, but he is more dangerous because of his unabashed autocratic tendencies.

There are some recent rumblings that might provide some hope. John McCain, who has thus far been happy to rubber-stamp even Trump's most unqualified Cabinet nominees, is going to hold hearings about Russia's influence on Trump and his people. That might create a crack in the Republicans' solidarity.

In the end, it might be possible that Trump's own extreme flaws, combined with resistance by the people through the courts and conscientious resistance in the executive branch, will prevent him from doing his worst.

On the other hand, it might actually be the case that even an aggressive change of attitude by Republicans in Congress will not be enough to stop him. But it is unquestionably true that a continuation of the current pliant attitude from the Republican majority will make it a lot easier for Trump to get away with what he wants.

Either way, the rest of the country must continue to resist, but it would be helpful if at least some Republicans decided to put country above blind ideology and cultlike loyalty to a dangerous demagogue.

Neil H. Buchanan is an economist and legal scholar, a professor of law at George Washington University and a senior fellow at the Taxation Law and Policy Research Institute at Monash University in Melbourne, Australia. He teaches tax law, tax policy, contracts and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.