On Monday, June 26 the U.S. Supreme Court handed President Trump a partial victory by allowing the government to prohibit the entry into the U.S. of some foreign nationals banned by the president’s January, 2017 executive order. In his order, the second Trump issued on the same question, most travelers from six Muslim-majority countries were temporarily prohibited from entering the United States.
Was the president’s ban legal? Supporters of the ban pointed to the Nationality Act of 1952, which gives the president the authority to impose restrictions on the entry of foreign nationals if he or she determines their entry “would be detrimental to the interests of the United States.” Opponents of the ban argued that the 1952 statute was modified by a 1965 law that prohibits discrimination against immigrants based upon their country of origin. They argued, moreover that Trump’s various utterances and “tweets” showed that the ban was aimed only at Muslims, a form of discrimination based upon religion that is inconsistent with constitutional precepts.
While lower federal courts had blocked the travel ban from going into effect, the Supreme Court said it would hear the case in October but, in the meantime would allow the ban to go forward. Exemptions would be made for travelers who were coming to the U.S to join family members, to take job offers or to attend school. Though the Court could rule against the ban in October, generally when the Court allows the government to go forward pending later review, it is signaling that it is likely to uphold the government’s (in this case the president’s) actions.
Americans may debate the propriety of President Trump’s executive order but they should not be surprised that it was upheld by the Supreme Court. Every year, presidents issue hundreds of executive orders and these are nearly always upheld by the federal courts. Presidents often use executive orders to achieve goals that would have little chance of winning congressional approval. Executive orders are very difficult for Congress to overturn since legislation negating such an order is likely to be vetoed by the president who issued it. The courts are reluctant to engage in battles with the White House. The result is that rule by presidential decree has become an unfortunate fact of life in the United States.
By the way, the only effective mechanism for negating an executive order is a new order by the next president.

Political Revelations and Investigations Continued

In the opening months of 2017, the new Trump administration was rocked by a steady stream of leaks and media revelations related to such matters as Trump aides’ dealings with Russia, the president’s intemperate and sometimes reckless comments, conflicts of interest on the part of Trump staffers and so forth. A number of investigations into these charges were launched by congressional committees and by a special prosecutor appointed by the Justice Department. This barrage of revelations and investigations seemed to follow the pattern established during the 2016 presidential election.
Throughout 2016, it should be recalled, America’s political waters were roiled by a host of investigations and revelations aimed at influencing the outcome of the 2016 presidential election. Republicans fired the opening shots by launching a congressional investigation of Hillary Clinton’s role in the deaths of U.S. embassy officials in Benghazi, Libya and another investigation of Clinton’s use of a private email server to handle official State Department correspondence. Neither investigation led to the bringing of formal charges against Clinton but both convinced many Americans that the former Secretary of State was dishonest and untrustworthy. Republicans, indeed, charged that Clinton was spared prosecution only because her allies in the Department of Justice moved to protect her.
For their part, Democrats had no difficulty finding and revealing information damaging to the campaign of Republican presidential nominee, Donald Trump. In October, 2016, with only weeks before the November election, a video surfaced showing Trump making lewd comments about unnamed women. Democrats and many Republicans declared that the video showed Trump to be unfit to hold high public office. The national news media predictably decried what they described as a dangerous and vicious turn in American politics. Rather than focus on the many issues facing the nation politics, they said, had sunk to a new low of mudslinging and personal attack.
Many of the charges leveled against Trump seemed quite serious, but it is worth pausing to consider their significance in a larger political context. From the earliest years of the Republic, mud has been an important weapon in the arsenals of competing political forces in America. The Jeffersonian press, for example, made much of Alexander Hamilton’s illegitimate birth and the papers allied with Hamilton raised many questions about Thomas Jefferson’s parentage and alleged sexual peccadillos. Modern-day politics is an extension of these practices, rather than some aberration.
In recent years, at least since the Watergate investigation of the 1970s that drove President Richard Nixon form office, each political party has made use of heavily publicized investigations to harass and embarrass its foes in the other party. Thus, for example, in the 1980s Democrats launched the Iran-Contra investigations that damaged the Reagan administration. In the 1990s, Republicans did enormous political damage to President Bill Clinton with the Whitewater investigations. In 2003, Democrats investigated charges that top Bush administration officials had leaked the identity of a covert CIA operative whose husband was critical of the president’s policies in Iraq. Senior GOP official Lewis “Scooter” Libby was convicted of lying to investigators but his prison sentence was commuted by President Bush.
It is, of course, true that many of these investigations revealed evidence of serious wrong-doing in high places. In most instances, however, the actual purpose of the investigation was to publicly humiliate a political opponent by publicizing sensational charges of official and/or private misconduct. Often, the charges simply involved embarrassing or inappropriate behavior, or minor infractions that hardly presented threats to the safety of the Republic. Thus, during his confirmation hearings. Justice Clarence Thomas was accused, amid much fanfare, of engaging in inappropriate sexual banter with a former subordinate while Judge Douglas Ginsburg was compelled to withdraw his name from consideration for the Supreme Court seat to which he had been nominated when it was revealed that he had smoked marijuana in college. Several Republican and Democratic cabinet nominations had to be withdrawn when it was revealed that the nominees had neglected to pay the so-called “nanny tax” for former household employees. And, of course, President Bill Clinton was humiliated by revelations of sexual escapades in the Oval Office. Other nominees, staffers and officials were embarrassed by charges that they had made inappropriate comments, engaged in improper dalliances or, worst of all, received poor grades at Yale.
In a number of instances, these stories were based upon leaks from disgruntled staffers or information that emerged during the routine course of news gathering. Many of the most embarrassing revelations, however, were uncovered by investigators employed by politicians specifically for the purpose of ferreting out potentially damaging information about their opponents. Each political party makes extensive use of experts in what has come to be called “opposition research.” Some opposition research is done on a part-time basis by congressional staffers and political consultants. In the city of Washington, alone, however there are dozens of firms that specialize in this art. For a fee, opposition researchers will conduct computer searches, interview subjects’ acquaintances, conduct surveillance and read subjects’ books, articles and speeches to search for material that can be used against them.
One famous opposition researcher, Washington detective Terry Lenzner, specializes in searching subjects’ trash–a practice known as “dumpster diving.” Indeed, Lenzner wrote a magazine article on dumpster diving, which he characterized as a “very creative” means of securing information. Lenzner first attracted attention during the Clinton impeachment battles in the 1990s, when he was employed by the president’s allies to obtain information that might be used to discredit the various women who were making allegations of sexual improprieties against the president. Later, Lenzner was retained by the Oracle corporation to collect information about Microsoft that might be useful in Oracle’s legal and political struggles against its giant rival. Microsoft charged that Lenzner twice approached the night cleaning crews who serviced an office building used by one of its lobbying arms and offered to purchase its trash.
And, while the media decry mud slinging, the effectiveness of dumpster diving and other forms of opposition research depends, in part, upon the willingness of the news media to publicize the information that is uncovered. Generally speaking, liberal newspapers, periodicals and television networks are very happy to report the misdeeds of conservative politicians while conservative papers, periodicals and broadcasters are delighted to devote time and attention to allegations of misconduct on the part of liberals. Thus, liberal publications like the New York Times and the Washington Post were the first to publicize accusations of misconduct on the part of Richard Nixon, Ronald Reagan, former Republican House majority leader Tom DeLay and other conservative politicians, most recently including Donald Trump. In a similar vein, revelations of sexual improprieties on the part of Bill Clinton were initially publicized by the American Spectator, a conservative news magazine, and were given enormous play by Fox Network News and scores of conservative “talk radio” programs. Once a story has gained momentum, however, ideological factors seem to diminish in importance. Rather like piranha fish sensing blood in the water, media of all ideological stripes revel in the struggles and, especially, the death throes of the unfortunate subject of a campaign of revelations. Reporters never tire of these political dramas and, hence, contending political forces work to provide the media with a steady stream of new dirt with which to discredit their opponents. Dumpster diving is definitely a profession with a promising future.

Is There a Method to Trump’s Madness?

In the several days since he assumed the presidency on January 20, Donald Trump has issued a host of executive orders and presidential memoranda, signaled a possible shift in American foreign policy by holding an apparently cordial discussion with Vladimir Putin, denounced the mass media, shuffled and reshuffled the National Security Council, fired the Acting Attorney General and named a new Supreme Court justice. Several of his executive orders reversed Obama-era orders such as reopening the way for the Keystone XL pipeline. Other orders implemented campaign promises such as the construction of a wall on the U.S.-Mexico border and imposing a freeze on immigration from several predominantly Muslim countries.

Still other presidential directives called for expediting environmental reviews and reducing the size of the federal bureaucracy. These directives, couched in the form of presidential memoranda, have less force than executive orders, often giving guidance or suggestions to federal agencies rather than definite commands

Accompanying this flurry of activity was a swarm of presidential tweets. Continuing the pattern set during his campaign, Trump has issued tweets every morning. He has tweeted new domestic policy initiatives, new foreign policy directions, praise for his supporters and ill-tempered attacks against his opponents. The nation’s political agenda seems to be reset every morning from President Trump’s Twitter account.

Many commentators have called the first days of the Trump administration chaotic and have decried “government by tweet.” Each of Trump’s policy initiatives and many of this appointments has generated outrage among the president’s foes and on the part of the news media–the wall the immigration ban, the Supreme Court appointment–were all subjected to intense criticism and even angry demonstrations. Is this unstinting barrage of presidential actions and announcements some sort of executive madness?

Perhaps, but whether intended or accidental, Trump’s barrage of initiatives is thus far by sheer volume and audacity, having the effect of confusing and overwhelming his opponents. Indeed, each new measure creates an uproar that seems to drown out the uproar over the previous initiative. With the immigration ban, the wall was virtually forgotten. In turn, the Supreme Court appointment, whose announcement was moved forward for this purpose, diverted attention from the immigration ban and so forth. The news media are particularly susceptible to this Trump tactic. No reporter wants to be the last person covering yesterday’s news. Yesterday’s events are quickly lost as today’s events take their place.

So long as Trump is able to maintain the initiative and his current pace, his foes will be hard pressed to check him and regain their own footing.


Throughout his 2016 presidential campaign and continuing after his victory in the 2016 national presidential election, Donald Trump has made daily use of Twitter–usually tweeting before dawn– to promote his ideas, lambaste his opponents and reach national constituencies without relying on the conventional mass media for cooperation. Indeed, the media are among the main targets of Trump’s tweets. In January, 2017, for example, in response to a CNN report intimating that the Russians had acquired material that could be used to blackmail the incoming president, Trump accused CNN of publicizing “totally made up facts by sleazebag political operatives…FAKE NEWS.” In other tweets, Trump asserted his views on foreign and domestic policy issues, praised his cabinet nominees, attacked companies that moved production out of the U.S., and generally offered his own perspectives on national and international developments.
Many commentators were initially critical of Trump’s propensity to tweet and dismissed his efforts as examples of Trump’s petulance and propensity to shoot from the hip. Some accused Trump of engaging in foolish attempts to conduct government by tweet.
After a time, however, even Trump’s critics came to see the power of tweeting as a political tactic. To Trump, early-morning tweets are a way to set the agenda for the day’s news coverage. Every morning, reporters find comments from the president elect waiting for them as they sip their coffee. Some reporters and commentators are moved to respond positively to Trump; many more are inclined to criticize Trump’s comments. No journalists, however, can ignore Trump lest they be locked out of the day’s journalistic conversation. The result is that, every day, much of the day’s news is about Trump. Whether he is praised or criticized is irrelevant. Indeed, Trump has taught his supporters to reject critical comments from his enemies in the press-purveyors of “fake news”–and to believe only positive coverage of his efforts. Twitter has helped Trump become the center of national attention and the dominant figure on the American political landscape.

Healing the Wounds of 2016?

As the long and bitterly-fought 2016 election drew to a close, President-elect Trump, President Obama, Hillary Clinton and a host of commentators and pundits declared that it was time to heal the wounds and bring the nation back together. It seemed more likely, however, that competing political forces would lick their wounds and move their battles from the electoral arena to the nation’s capital.
During the course of his campaign, Trump had outlined an ambitious agenda of foreign and domestic policies and programs designed, as he said, “to make America great again.” Though we often tend to be skeptical of candidates’ campaign promises, these pledges usually offer a reasonably accurate blueprint for understanding candidates’ plans. Trump seems likely to attempt to make good on a number of his pledges which are consistent with his nationalistic and populist orientation and with mainstream views within the Republican party. With the House and Senate in Republican hands, Democrats will be hard pressed to block Trump’s efforts. Democratic congressional leaders will, nevertheless, wage pitched battles against Trump and his allies, producing new wounds over the scabs of the old ones.
One of the first battles of the Trump presidency will concern the appointment of a new Supreme Court justice to replace the late Antonin Scalia. After Scalia’s death in 2016, President Obama designated Merrick Garland, a moderate Democrat, as his replacement. Senate Republicans refused to move on the Garland nomination which would have given the Court a 5-4 Democratic majority. Trump promised that he would designate a conservative jurist and, during the campaign, published a list of potential nominees that included many of the nation’s most distinguished conservative judges. Among those named were U.S. Appeals Court judges William Pryor, Diane Sykes and Steven Colloton, all of whom were thought to be opponents of abortion rights. Sykes is also known as a proponent of 2nd Amendment rights. Trump’s list pleased Republicans but Democrats vowed to battle any such nominee who, if confirmed, would restore the 5-4 conservative majority of the Scalia years. This battle could produce a Democratic Senate filibuster and a Republican effort to change Senate rules to bring an end to this venerable Senate tactic.
A second battle will almost certainly be fought over Obamacare. During the campaign, Trump frequently asserted that the repeal or modification of the Affordable Care Act would be among his first priorities. For the most part, House and Senate Republicans agree that Obamacare should be repealed and many support the idea of replacing it with Health Savings Accounts (HSA’s). Democrats are prepared to mount a fierce battle to defend a program that they hoped would join Medicare and Social Security as entitlements giving millions of voters a reason to support the Democratic party.
A third battle will involve immigration and border security. Trump famously declared that he would build a wall along the U.S. border with Mexico, prevent illegals from entering the country, and increase deportations of non-citizens who committed crimes in the U.S. Democrats castigated Trump for his callous attitude toward refugees. The fact is, however, that much of the U.S.-Mexican border is already strongly fenced and heavily patrolled. President Obama, moreover, greatly accelerated deportations while claiming to search for a more humane solution to the problem of immigration. Nevertheless, Democrats view the Hispanic community as an important constituency and will resist efforts by Trump and the GOP to strengthen border security.
Fourth, Trump will seek to revise American economic and trade policy. During the campaign, Trump accused the Democrats of allowing millions of blue-collar jobs to leave the country for China and Mexico while American workers faced unemployment. Trump will seek to provide manufacturing industries with reasons to stay in America by reducing corporate taxes and repealing many current financial, environmental and safety regulations that business finds costly and burdensome. Trump has also promised to scuttle the proposed Trans Pacific Partnership and to revisit America’s various existing trade and international environmental agreements to obtain terms more favorable to American firms and workers. Democrats will argue that under the pretext of helping American workers Trump and the Republicans plan to undermine the health and safety rules that protect American workers while offering unproductive but politically powerful American firms protection from foreign competition.
Fifth, Trump has criticized China while promising a better relationship with Russia. Both Democratic and Republican internationalist elites have long viewed friendly relations with China as a cornerstone of American security and trade policy–protecting American trade interests while enmeshing China in a series of economic relationships with the U.S. likely to prevent military rivalries. To Trump and other nationalists in the GOP, China is a growing enemy to be confronted rather than a beneficent trade partner, and Russia is a useful counterweight to China. Democrats are ready to accuse Trump of mounting a reckless and dangerous foreign policy, especially as Trump seeks to carry out his plan to greatly expand American naval and air power in the Pacific.
Thus, calls to heal the wounds and bring the nation together in the wake of the election seem rather whimsical. The conclusion of the election marked the end of one battle in a long struggle over the nation’s future.