Co-authored by Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law Emeritus, George Washington University Law School
[dropcap]D[/dropcap]onald Trump’s recent order, cruelly and arbitrarily barring refugees and Muslim immigrants from entering the United States, is just the latest despicable act by an illegitimate president. Orders of this sort are unfortunately unsurprising. They are an expected outgrowth of Trump’s racist, misogynist, anti-immigrant, anti-Muslim, anti-LGBTQIA agenda.
Trump’s illegitimate presidency and his anti-American agenda are why millions of people joined the Women’s March the day after his inauguration. Marchers advocated human rights for all, social and economic justice for all. The marchers, and many millions of others, are determined to oppose and resist a President who lost the popular vote, and whose election came about through voter suppression, intervention by the FBI, and conspiracy with Russian operatives.
Since his Inauguration, Trump has taken numerous actions that reinforce the necessity for this resistance. In addition to his viciously inhumane and unlawful order to block refugees and Muslim immigrants from entering the United States, his anti-immigrant agenda has already taken the form of an order to build a hateful, wasteful, and ridiculously expensive wall on portions of our border with Mexico.
His outrageous lies, continuously repeated in a hopeless effort to legitimize his illegitimate presidency, about supposedly fraudulent voting in the 2016 election, provide additional cause to refuse to normalize. Like his absurd claim that more people attended his Inauguration than any other, his assertion about voter fraud would be laughable if it were not so subversive of our democracy.
But phony allegations of fraud are the only way for Trump to argue that he won more votes than Hillary Clinton. Trump’s neurotic claims about the size of his electoral and popular support, his minions’ outlandish lies in support of his claims, and their clumsy attempts to intimidate the press, would all be laughable if they too weren’t so serious. Those actions are a threat to the Constitution and the norms of American democracy.
Trump’s nominations of corrupt and incompetent nominees for high public office are dangerous and deplorable, and risk grave harm to the social fabric, economic well-being, and quality of justice in the United States. Trump’s character failings, his illegitimacy, and his dangerous plans for the nation all require resistance. All demand a concerted and collective determination to never normalize.
The American people, including many who have never before engaged in politics, are galvanized, determined and strong. The admirable and energetic resistance has included public protests; phone calls to our elected representatives; financial contributions to the ACLU, Planned Parenthood, and other organizations committed to fight Trump’s radical agenda; and a vast array of mobilizations and creative acts, large and small.
In a rapid response to the order banning refugees and Muslims, several federal judges quickly ordered the government not to return detainees, stranded in U.S. airports, back to their countries of nationality, but their status remains uncertain. Spontaneous protests erupted at JFK airport and elsewhere. The University of Michigan announced it would not provide the government information about its students’ immigration status, and New York cab drivers boycotted JFK airport during rush hour as a symbol of solidarity and protest.
The resistance has, so far, arisen organically. Millions of Americans have been encouraging, demanding, participating in, and even leading the resistance. Our Democratic Senators and representatives in Congress ideally should be at the point of this spear, at the front of this resistance. At the least, they should be following the lead of the American people, and joining the all-out resistance.
What they absolutely should not do is subtly undercut the resistance by acts of collaboration and normalization. Unfortunately, they have done so. Democratic leaders have publicly stated their plan is to not block everything, but rather to pick their fights. Even before Trump was nominated, they offered an olive branch, asserting that they would work with Trump on issues where they agreed. Those are commitments to normal behavior by members of the opposition party at the beginning of a normal presidency.
We admire the seventy members of the House of Representatives who boycotted the Inauguration, but it would have been far more powerful if every Democratic Senator and House member had similarly boycotted. That would not have undermined the peaceful transfer of power, but it would have signaled that this president does not deserve and should not receive any semblance of normal respect.
We admire the two New York Representatives who traveled to JFK airport to stand in solidarity with the refugees being held there. But it would have been far more powerful – and an important act of leadership of the resistance – if many more elected officials had joined them and had called for work stoppages, demonstrations, or other forms of protest.
Normalizing was acquiescing and participating in hearings and votes on cabinet nominees, even when Trump had not yet been sworn into office and thus lacked any authority to make those nominations. That, too, is normal behavior from every opposition party at the beginning of a presidency. And the business-as usual treatment of nominees has taken other forms, as well. Ben Carson is totally unqualified to be Secretary of Housing and Urban Development, yet even Senators Elizabeth Warren and Sherrod Brown, two of the most progressive and thoughtful members, voted in his favor in Committee. That is an act of normalizing Trump.
In fairness, Warren, Brown and others have resisted. Schumer, for example, pledged to fight Trump and his fellow Republicans “tooth and nail” on most issues, but he added that “Democrats wouldn’t say ‘no’ to a proposal just because the president-elect supports it.” The qualification about selective opposition, presumably made in an effort to sound reasonable, is also a form of normalization.
What would it mean for Democratic leaders to stop normalizing? First, they must forcefully object to every nominee unless he or she offers persuasive evidence of integrity and competence. Second, every Executive Order the president signs should be met by legislation, sponsored by all Democrats, designed to overturn the order unless it is demonstrably good policy. None of the Executive Orders to date come close to meeting that standard. In order to slow down all action, Democratic Senators should refuse unanimous consent to everything. The Deputy Chief of Staff to now-retired Senate Democratic Leader Harry Reid has provided an excellent justification for why this should be done, a blueprint for how to accomplish it, and an analysis of its beneficial impact.
Unanimous consent should only be granted if Democrats wrest concessions for doing so. If Democratic legislators determine it is in the national interest to support legislation, they can do so, but they should not announce they will do so ahead of time, and certainly not trade their legitimizing votes for crumbs.
They should not be restrained by normal rules of decorum at the State of the Union and other public addresses. While they should attend and let Trump speak, they should be quick to boo and to shout “You lie!” and “Putin’s Puppet!” when Trump’s assertions call for those reactions. Perilous times call for disruptive measures.
When this illegitimate president and his GOP collaborators act outrageously, such as issuing a ban on refugees, and when resistors start to act, Democratic leaders should help shine a spotlight on those actions and join in them. Perilous times call for courage and solidarity.
In addition to resisting, Democratic leaders should offer positive alternatives to bad policy proposals. In response to the Republican calls for repeal and replacement of the Affordable Care Act, Democrats should demand Medicare for all. They should hold their own hearings – outside the Senate, if the Republicans refuse them space – on every issue where the American people are not being heard.
Democrats must offer a new, bold, and progressive agenda, on which the next election can be a referendum. In short, they should lead the resistance and offer hope to a dispirited, angry, and frightened nation.
We recognize that much of what we are calling for represents a radical inversion of the norms of our democracy. But a horrifying inversion of those norms by those in power demands a response in kind. Many may believe that the kind of behavior we are recommending will undermine our political institutions, and stimulate a race to the bottom in political decency. In normal times, we might agree, but the breadth and intensity of the resistance to Trump’s presidency is a powerful signal that these are not normal times. Under current conditions, lawful resistance is essential to preserve our democracy.
These are dangerous moments for the Republic, and the rapidly exploding political crisis of early 2017 is what brings resisters to the street. We will be back in the streets on many occasions in the immediate future. The minority party must act like the loyal opposition – loyal to the Constitution, not to the pretenders to the throne.
We recognize that it will take courage of many kinds – political, economic, and even physical – for the established institutions of political opposition to rise to this moment. But the Democratic Party, and a fiercely independent press, must not fail us. If they do, the consequences will be irreparable.
If Democratic legislators have doubts about what resistance looks like, they should simply remember Republican opposition to Barack Obama, who took office with full legal, political, and moral authority. With far fewer protestors in the street – and with those protestors angry at both Wall Street and Washington – Republican legislators refused to acknowledge Obama’s legitimacy, and instead, sought to block him at every turn possible. An illegitimate, dangerous, egomaniacal, racist, xenophobic, misogynist, and narcissistic autocrat in the White House today deserves resistance proportional to the danger he presents.