Trump the Dictator—On Conlawprof (where else?)

Dear Professor ZZZ,

You wrote: “I’m also curious if others agree with me that Speaker Pelosi is acting in the highest tradition of Federalist 51 by standing up for her institution against a mountebank who is indeed using loyal employees of the executive branch as hostages to bend Congress to his dictatorial will?”

Pre-Jackson there was a view that presidents should only veto bills if they believed them unconstitutional. Post-Jackson presidents routinely veto bills on policy grounds. Trump is having a policy dispute with Pelosi about funding a wall. It is simple.

Pelosi and her majority are entitled to control access to their chamber. I don’t see anything high or low about such conduct—as a matter of principle, it is pretty mundane, although historically such restrictions against the President are quite exceptional.

I don’t see any value calling Trump’s veto threats as “using loyal employees ... as hostages.” Either side and both sides are fully entitled to play hard ball to get their spending priorities. This politics has to be allowed (even as a normative matter) to play itself out—otherwise elections are meaningless. Our super-majoritarian Constitution—for better and worse—has multiple veto gates. When an elected arm of the government makes use of a veto gate—particularly in support of an election pledge—we should characterize such conduct as ordinary democracy in action and as good politics, consistent with transparency and accountability norms.

Describing Trump as “bend[ing] Congress to his dictatorial will”—there you’ve entirely lost me with your casual use of “dictatorial.” What does “dictatorial” add? And how do you mean it? Has Trump stopped elections—state or federal? Has he launched unauthorized land wars? Has he ordered his prosecutors to round up his political opponents? Or, has he detained people based on ethnicity? Has he disobeyed any court rulings where he was a party? Or, has he ordered the government to disobey such rulings where the government was a party? Other than that you don’t care for Trump, his policies, and his rhetoric—what purpose does it serve to use such hyperbolic language?

In my view, the Copperheads had no good cause to call Lincoln a dictator. But I think they had better cause (then) to call Lincoln a dictator, than you have (today) to call Trump a dictator. I don’t say that because Trump, his policies, and his rhetoric should escape scrutiny, but only because I see nothing justifying your characterization of Trump or his will as “dictatorial.” 

That said: I think you are on much firmer ground using the language of “hostage” and “dictatorial” in regard to Trump than your and other (fellow) Americans’ doing so in regard to Brexit. Not because the purported wrongful substantive conduct at issue is so very different, but because it is (in my opinion) natural to think the stakes are higher when we speak about our own country. Likewise, we (in my opinion) tend to believe (and quite rightly I might add) that we are better informed about our own country than that of distant lands under different legal systems with different constitutional and political mores. All these factors might have a distinct tendency to lead one to rhetorical excess. By contrast, when Americans (i.e., those of us lacking any specific expertise about the UK and EU) use this sort of hyperbolic language about Brexit, I can only wonder:—What is driving “this chorus of execration”*? 

Seth 

Seth Barrett Tillman, Trump the Dictator—On Conlawprof (where else?), New Reform Club (Jan. 24, 2019, 4:37 AM), <https://reformclub.blogspot.com/2019/01/trump-dictator.html>.

*Arthur Conan Doyle, The Great Boer War 118 (1902), <https://tinyurl.com/ydxl6mv4>; see also Arthur Conan Doyle, The Complete Works of Arthur Conan Doyle/illustrated ch. 8 (2017), <https://tinyurl.com/yb4ndx77>; cf. Address to the Annual General Meeting of the West Midlands Area Conservative Political Centre (Birmingham, Midland Hotel April 20, 1968), <https://tinyurl.com/yaqzg2cf>. 

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