By David French • New York Post
Lost in most of the coverage of President Trump’s decision to rescind the Obama administration’s transgender mandates is a fundamental legal reality: The Trump administration just relinquished authority over gender-identity policy in the nation’s federally funded schools and colleges.
In other words, Trump was less authoritarian than Obama. And that’s not the only case.
- Trump nominated Neil Gorsuch to the Supreme Court, a man known not just for his intellect and integrity but also for his powerful legal argument against executive-branch overreach. Based on his previous legal writings, if Gorsuch had his way, the federal bureaucracy could well face the most dramatic check on its authority since the early days of the New Deal.
- Trump nominated H. R. McMaster to replace Michael Flynn as his national-security adviser. McMaster made his name on battlefields in the Gulf War and the Iraq War, but he made his name as a scholar by writing a book, “Dereliction of Duty,” that strongly condemned Vietnam-era generals for simply rolling over in the face of Johnson-administration blunders and excesses.
- In his view, military leaders owe their civilian commander in chief honest and courageous counsel — even when a president may not want to hear their words.
- When the Ninth Circuit blocked Trump’s immigration executive order (which was certainly an aggressive assertion of presidential power), he responded differently from the Obama administration when it faced similar judicial setbacks.
Rather than race to the Supreme Court in the attempt to expand presidential authority, it told the Ninth Circuit that it intends to rewrite the order to address the most serious judicial concerns and roll back its scope.
Authoritarianism is defined by how a president exercises power, not by the rightness of his goals.
Indeed, if you peel back the layer of leftist critiques of Trump’s early actions and hires, they contain a surprising amount of alarmism over the rollback of governmental power.
Education activists are terrified that Betsy DeVos will take children out of government schools or roll back government mandates regarding campus sexual-assault tribunals. Environmentalists are terrified that Scott Pruitt will make the EPA less activist.
Civil-rights lawyers are alarmed at the notion that Jeff Sessions will inject the federal government into fewer state and local disputes over everything from school bathrooms to police traffic stops.
A president is “authoritarian” not when he’s angry or impulsive or incompetent or tweets too much. He’s authoritarian when he seeks to expand his own power beyond constitutional limits. In this regard, the Obama administration, was truly one of our more authoritarian.
Obama exercised his so-called prosecutorial discretion not just to waive compliance with laws passed by Congress but also to create entirely new immigration programs.
He sought to roll back First Amendment protections for political speech (through his relentless attacks on Citizens United), tried to force nuns to facilitate access to birth control and even tried to inject federal agencies like the Equal Employment Opportunity Commission into the pastor-selection process, a move blocked by a unanimous Supreme Court.
In foreign policy, he waged war without congressional approval and circumvented the Constitution’s treaty provisions to strike a dreadful deal with Iran.
There’s no doubt Trump has expressed on occasion authoritarian desires or instincts. In the campaign, he expressed his own hostility for the First Amendment, his own love of expansive government eminent-domain takings (even to benefit private corporations), encouraged violent responses against protesters and declared that he alone would fix our nation’s most pressing problems.
But so far, not only has an authoritarian presidency not materialized, it’s nowhere on the horizon.
Instead, he’s facing a press that has (and somewhat cynically) rediscovered its desire to “speak truth to power,” an invigorated, activist judiciary and a protest movement that’s jamming congressional town halls from coast to coast. This tweet, from Sonny Bunch, is perfect: “Donald Trump is such a terrifying fascist dictator that literally no one fears speaking out against him on literally any platform.”
It was just three weeks ago that David Frum published a much-discussed essay outlining how Trump could allegedly build an American autocracy. Ezra Klein wrote at length about how the Founders’ alleged failures laid the groundwork for a “partyocracy.”
And now? Trump’s early struggles are leading pundits to ask, “Can Trump help Democrats take back the House?” In the American system, accountability comes at you fast.
Liberals were blind to Obama’s authoritarian tendencies in part because they agreed with his goals and in part because their adherence to “living Constitution” theories made the separation of powers far more conditional and situational.
It’s early, and things can obviously change, but one month into the new presidency, a trend is emerging: Trump is less authoritarian than the man he replaced.