Back in June, I argued “The Contrarian Case for a Trump Presidency.” While it doesn’t really read as a ringing endorsement, I argued that a President Trump was preferable to a President Clinton because executive power was already out of control, and a Clinton Administration would make matters worse in that regard while a Trump Administration would lead to significant – and very much needed – pushback. In conclusion, I argued,
I’ll take the devil I know most sensible people can’t stand, and who will be constrained by a resurgent love for constitutional order; as opposed to the devil I know half the country will dutifully fall in line behind and celebrate while brushing aside complaints about excess and overreach.
A few weeks in and this appears to have borne itself out. For example, defenders of sanctuary cities have invoked the federalism jurisprudence of the Rehnquist and Roberts Courts to argue that Trump’s rhetoric towards states and municipalities who house illegal immigrants is empty threatening, “Thanks to Conservatives.” The Tenth Amendment, long dismissed by the left as the fetishized talisman of the racist right, is now being rediscovered by liberals as, in the words of a Boston Globe columnist, “worried Americans look to the states to protect their rights or to resist . . . despotic policy proposals.” In the wake of the President’s immigration-related executive order and how it’s fared in the courts, we have seen pundits celebrate the separation of powers and judicial independence – something that the left generally sneered at when judges got in the way of President Obama’s unilateralism on immigration just a few short months ago (which, in a fitting twist of fate, has now provided useful precedent for courts presently on issues regarding state standing as well as the propriety of nationwide injunctions).
But, for me, a lawsuit just filed a few days ago takes the cake. The President issued an executive order requiring federal agencies to repeal two regulations for every new single rule that they issue – i.e., a one-in, two-out policy. Given how such a rule would have a natural deregulatory effect, groups who like federal regulations – largely left-leaning – are none too happy. As such, a small coalition of left-of-center public interest groups have sued to prevent the order from taking effect. While they advance a number of legal arguments (complaint available here), their First Cause of Action is what has my heart a-flutter. They argue,
The President has no authority under the Constitution to amend federal statutes unilaterally . . . . Such action by the President exceeds presidential authority and usurps legislative authority conferred by the Constitution on the Congress. Accordingly, the Executive Order violates the separation of powers.
Now, I am not naive enough to think that this is more than fleeting legal opportunism, of which both sides are guilty when they are out of power. However, given that conservatives said this same exact thing about President Obama and his unilateral rewrites of the Affordable Care Act (as just one of a number of examples), and liberals by-and-large had no time for such complaints (except now after-the-fact, it appears, given their concerns about Trump undoing everything Obama did in the same way he did it), it’s refreshing to hear arguments from the left about executive overreach, congressional authority under the Constitution, and the separation of powers. I only hope the right does not forget the lessons it learned under the Obama Administration even though they are now in power, and that the left is perturbed enough by the Trump Administration such that this newfound interest in traditionally conservative agenda items lingers even when their team is back in power. Given the nature of politics, I won’t hold out much hope – I will, however, enjoy this brave new world in the mean time, where progressives are once again talking about the virtues of first principles such as the separation of powers!