Without question, the Trump landslide (we can now use the word) will transform the United States for the better in many key areas including administrative law, business regulation, crime, energy, environment, immigration, taxation, and more. Yet I fear that Trump may go off the rails on both foreign and domestic issues. Here is a short primer.
Ukraine. The Wall Street Journal reported that the Biden administration is rushing military aid to Ukraine in anticipation that Donald Trump may well shut down that arms pipeline. That shutdown would be a terrible mistake, regardless of whether or not Trump hopes to orchestrate some deal with a stubborn and dangerous Vladimir Putin. The terms of any settlement must include what Putin has already rejected: his withdrawal from Ukraine. At this point, the correct approach first recalls the disastrous Biden withdrawal from Afghanistan, which the president falsely attributed to Trump’s earlier deal with the Taliban, which in reality had many offramps that Biden refused to take. So, the lesson here is that weakness in Ukraine will not pay off any more than it does with Biden’s waffling in Israel. Trump, for his part, has long maintained cordial relations with Israel, where he has committed himself rightly to the hard line, especially in light of Iran’s failed assassination scheme against him.
So, the first move must be to deal from a position of strength with both Ukraine and Israel. The way to restore the initiative in Ukraine is to remove the limitations on the use of American weapons against Russia. Let the Ukrainians attack any place in Russia that is a base from which it deploys its armed forces against Ukraine. The Russians excel in wars of attrition, no matter how great their own loss of human life. But they are too ponderous militarily to deal with fast-moving thrusts against their own infrastructure. Why then negate the effectiveness of Ukraine’s strategy, which in turn leads to the prolonged stalemate that lets the isolationists, led by incoming vice president J. D. Vance, downgrade the threat of Putin in helping him negotiate a favorable deal? That deal would have devastating impacts on the other nations in Eastern Europe, including Poland, the Czech Republic, Moldova, and the Baltic states. A resurgent Russia might well enlist military support from China and Iran on this distant frontier, just as it already has with North Korea. Such a deal could also induce NATO allies like Germany to draw closer to Russia, and places like Japan and South Korea to put less stock in American backing.
Ten years ago, I criticized the Obama administration for killing Pax Americana, which led to rising instability that started in the Middle East and spread elsewhere. The same could happen again. It is fine to negotiate with Putin, but there will be no twenty-four-hour deal, and those negotiations can succeed only from a position of strength that requires Trump (and even Biden) to lift the fetters from American aid.
Tariffs. The second major danger for the Trump administration lies in Trump’s infatuation with tariffs, which he sees as a way to finance an American economic revival with foreign funds, obtained from the likes of China. This is a position that could hamper the American recovery, even before it is put into place.
The source of this Trumpian idyll is the use of tariffs by the United States to finance government during the nineteenth century, which was a period of general growth. But recall that the income tax received its clear constitutional blessing only with the adoption of the Sixteenth Amendment in 1913—before then, tariffs were an obvious source of revenue to feed a government far smaller than it is today. To improve overall social welfare, we need today to apply low, preferably flat, taxes over a broad economic base that should be kept as free of special deals and ad hoc compromises as is humanly possible. That flat structure removes the chronic temptation to impose steeply progressive taxes, which places the highest burden on the ablest individuals, reducing overall wealth. The achievement of Trump’s 2017 Tax Cuts and Jobs Act was that it moved taxes in the right direction and produced overall gains widely shared. This tax base is relatively narrow, so rates would have to be very high to offset proposed huge deductions from the income tax (which is one reason why the gimmicky effort to exempt tips from taxation should be stoutly resisted).
It is against this background that a high Trump tariff poses a great risk. Trump’s official position is that sellers from foreign nations would happily pay the entrance free to lucrative American markets, but he assumes that as the price of business goes up, the volume of business won’t go down. The actual consequences will prove to be far more dangerous. Imports will dwindle, resulting in higher prices and consumer losses. The tariff will be incorporated into the price of goods, so that foreign importers will pass some portion of the tax forward to American consumers. American producers will have to pay extra to buy imports that are essential to fabricating their own exports, whose prices go up and whose quality goes down. Other nations will rise to the bait, so that retaliation will infect multiple markets, which could lead to worldwide losses from which everyone loses.
All of this is not to say that free trade cannot be put aside for good reasons. Thus, it is perfectly sensible to put tariffs—indeed outright bans—on imports (think China) that use stolen American technology and intellectual property to reduce their costs, thereby obtaining an unfair advantage over their American rivals. In the export market there are important national security issues that relate to sensitive technologies and information that are best kept in national hands. But these exceptions should be closely monitored; earlier Trump efforts to control steel imports were based on transparently weak national security grounds.
Trump is rightly committed to the deregulation of the domestic economy, but that effort will be hampered by an aggressive tariff policy. Better to let a general relaxation of Biden’s heavy regulatory burdens pave the way to reduced taxes and reduced tariffs alike.
The rule of law. Before Biden took office in January 2021, there was in place a comprehensive system of advisory boards whose activities were extensively regulated by the Federal Advisory Committees Act (FACA), whose main objective was to secure for government the benefits of “independent judgment” that was not “inappropriately influenced by the appointing authority.” The members of these Boards of Visitors (BOVs) had no executive power, only the ability to advise the respective branches of government and the public at large. These BOVs were therefore far closer to the independent boards like the Federal Trade Commission whose commissioners were protected from at-will dismissal in Humphrey’s Executor v. U.S. (1935), as were members of administrative tribunals in Wiener v. United States (1958). Both are quite unlike district attorneys who routinely submit their resignations at the end of a term because they are executive branch officers under Parsons v. United States (1897) who may be dismissed at will even if they work on a contract for a term of years.
Of the fifteen members of the military BOVs, six were appointed by the president to staggered three-year terms, two appointment per year. The president pro tem of the Senate appointed four members for one-year terms, and the speaker of the House appointed five members, also for one-year terms. Trump never once sought to dismiss any board members appointed under President Obama, but Biden did not return the favor when he sacked all the Trump appointees with a curt letter that said quit by 5 p.m. or you are out by 6 p.m. I was the lawyer who led the constitutional challenge to this flatly unconstitutional conduct, where our petition was turned down in the Court of Appeals on the dubious ground that the proceedings below had run out the clock, so the court held the case moot. However, because of a key exception to the rule, Roe v. Wade (1973) held that the mootness doctrine, in famous words ignored by the DC Circuit, never blocks hearing any case “capable of repetition, yet evading review.” Stirrup was the perfect vehicle to correct manifest injustice, because the only issue before the court was a pure question of law, which could have been decided on the merits to resolve the legal uncertainty. The Supreme Court refused to hear the case.
So now the question arises: should Trump do unto the Biden members of these boards what Biden did to the Trump members? No! Trump, who has been mercilessly attacked as a totalitarian menace, can blunt that image by stopping the current destructive cycle and letting the Biden members fill out their terms. He can then work to secure a legislative amendment to FACA that prevents a repetition of the threat to the rule of law in which Biden upset a key cog of the complex checks and balances that make democratic institutions work.
