Recent Supreme Court Decisions for Trump, Also in Ascending Order of Importance

 

So much for the Supreme Court decisions that went against Trump.  What about the ones in his favor?

Going from least to most important:

West Virginia v. BPJ

This one allowed states to bar transgender athletes from girl's and women's sports. Democrats have usually kept quiet on this one. And my response is, fine!  It may not be a fashionable view on my side of the aisle, but there are biological and medical differences between males and females that current medical technology cannot overcome.  One of our side's arguments that there is no need for rules because the numbers are so small.  But the numbers are not zero.  The cases in controversy involved actual individuals in that situation.  Another argument is there is no need for a national rule, and it should be locally decided.  Which is fine.  The Supreme Court does not say that states must ban transgenders from female sports, only that they may.  And they left undisturbed a prior decision that bars employment discrimination against transgenders on the perfectly reasonable ground that employment and sports are different.  The dissent would not impose a categorical rule but would require schools to decide on a case-by-case basis.   The majority allows decisions on a case-by-case basis but does not require it.  Fine by me.

National Republican Senatorial Committee v. Federal Election Commission

This case struck down a longstanding rule limiting the ability of political party organizations to coordinate with and spend money on individual candidates, so long as donations to parties are not earmarked for one particular candidate and are properly disclosed.  The basis of this ruling is First Amendment freedom of speech.  I am somewhat ambivalent on this one.  The immediate effect would be to give the Republican Party an advantage in spending on its candidates, since it has larger (much) war chest than the Democrats.  I do not think it is too cynical to believe that this fact may have played into the Supreme Court's decision.  On the other hand, the decision comments, and I agree, that a lot of our current problems are the result of the weakening of political parties and their takeover by interest groups.  A stronger party structure would probably have screened out Graham Platner, for instance.  On the Republican side, a stronger party structure might have stopped Ken Paxton or Victor Marx.  To say nothing of you-know-who.  Weakening of parties and their takeover by interest groups has undermined democracy  in other countries.  Activists have a longstanding tendency to see themselves as the voice of the people simply because they are not political insiders.  But political insiders are often closer to the median voter than activists.  Party hacks are also less likely to see opponents as enemies and policy disputes as existential struggles.

At the same time, I can see other objections here.  One is that US democracy really is facing an existential struggle and ordinary rules do not apply.  Another is that our parties are weakened past all recovery.  And finally, the Supreme Court now is saying that our politics may be improved by allowing closer coordination between candidates and parties.  But how long before they decide that the First Amendment also compels coordination between candidates and interest groups?  Just for the record, I don't think our political parties are unsalvageable, at least not yet.  The reason activist are so angry at party hacks is that party hacks still have significant power.  On the other hand, I do think we are facing an existential crisis that saying this will work out well in the long run is useless if our democracy is overturned in the short run.  And I don't trust this Supreme Court as far as I can spit.

Markwayne Mullin v. Al Otro Lado

This case ruled that asylum seekers have no right to apply for asylum until they physically enter the US.  The practical upshot of this is that the Trump Administration can kill asylum altogether by closing the border and physically keeping out people who otherwise had a good claim.  The majority stuck to the polite assumption that this was merely a policy of "metering" -- requiring asylum seekers to enter the country at a manageable pace.  The dissent pointed out that in reality, it is used to prevent any asylum applications whatever.

Look, some sort of "metering" is going to be necessary to prevent the sort of all-out border chaos that brought Trump to power in the first place.  In his first term, Trump's ultimately successful approach to border control was the "remain in Mexico" policy, requiring asylum seekers to wait in Mexico while their claims were processed.  The results were brutal.  Asylum seekers waited in squalid conditions, often without adequate food or shelter, preyed upon by roving gangs. But, so far as most Americans were concerned, out of sight, out of mind.  

My view when Biden came to power was that he should keep this policy but make it more humane by offering some sort of protection and basic sustenance to people waiting -- enough to avoid a humanitarian crisis, but not enough to encourage people to show up who did not have a valid claim.  Instead, he ended Remain in Mexico without putting anything in its place, resulting in an uncontrolled flood of entries.  In an effort to control the border, Biden attempted an alternative -- allowing people to apply for asylum from third countries and be admitted in an orderly fashion if approve.  Naturally this was unsatisfactory to hardcore MAGA types who regarded any immigration as unacceptable.  It came too late for more moderate types and was easy to conflate with the border chaos.  If Democrats ever again have the opportunity to make immigration policy, it seems to me that the only way to balance the need for border control with basic humanitarian concern is to allow for application from outside the country.  This may require changing existing law.

Allowing the President to halt the entire asylum system by physically blocking applicants violates the spirit, if not the letter, of the law.  It is, however, the sort of power the Supreme Court would willingly entrust to a hypothetical future Democratic Administration because they are most unlikely to use it. And it is not the Supreme Court's worst opinion in the recent batch because it merely ratifies the existing situation.  At least it does not make things worse than they already are.

Mullin v. Doe

Worse than the Supreme Court's ruling the President can blow up the entire asylum system, which at least merely ratified what was already in place, was their ruling that he can also kick out anyone with Temporary Protected Status (TPS).  The majority explained by way of background that long before the relevant statute was enacted, Presidents had been granting relief from deportation to people from countries that were experiencing a major humanitarian crisis.  The status was also revocable at will and not subject to any oversite whatever.  Finding that this gave the President too much unbridled discretion, Congress enacted a statute setting forth specific procedures to be followed.  The Secretary of Homeland Security must consult with the relevant agencies about conditions in the country, review their findings, make a decision and publish it in the Federal Register.. At the same time, the statute declares TSP findings to be unreviewable.  What are we to make of that?

The majority held that unreviewable means that following the necessary steps is really optional.  If a Secretary of Homeland Security (Kristi Noem, say) skips the necessary review there is nothing anyone can do about it.*  The dissent argued that even if the final decision is unreviewable, the court can order the Secretary to go back and at least comply with the mandatory procedures.  I am not sure how useful this is if the Secretary can do the mandatory review of records and then simply ignore the evidence!  The plaintiffs -- Syrian and Haitian refugees -- argued that Trump violated their equal protection rights under the Constitution because he was excluding them because of their race.  The majority said nonsense, Trump simply doesn't like the law that protects immigrants whose home country is unsafe and decided to ignore it.  So apparently a Republican President is free to disregard any law he dislikes.  Clarence Thomas, in a concurring opinion, said that non-citizens have no constitutional rights, and that the Equal Protection Clause only applies to states and the federal government is free to do all the racial discriminating it wants to.  (No wonder some people see him as self-hating!).  The dissent pointed out some of the things Trump has actually said about Haitians -- comments so vulgar the majority could not bring itself to repeat them.

And then, of course, there are the real-world consequences of the decision, which the majority prided

itself in ignoring.  The Supreme Court gives the green light to stepped-up ethnic cleansing.  No Haitian is now safe.  And the harm is not just to Haitians living in the US.  Our home health and nursing homes in Florida and Ohio have come to rely heavily on Haitian labor.  I have thought for some time that nothing would make Trump's ethnic cleansing more unpopular than the sight of ICE raiding nursing homes and arresting people who change granny's diapers.  So why isn't there a huge outcry over this?  Granted, seniors in nursing homes are not a powerful interest group.  But what about the nursing home industry?  What about family members of seniors in nursing homes?  What about the AARP?  Why aren't any of these groups screaming bloody murder?

Still, bad as this decision is, it could worse.  For one thing, it seems compatible with the Supreme Court believing a Democrat might be President again some day.  No doubt they think this power can be safely entrusted to a Democrat because they would never use it.  It is also a matter of statutory interpretation rather than constitutional mandate.  Other executive actions are still subject to judicial review.  The statute really did say that the Secretary of Homeland Security's determinations are unreviewable.  What can be enacted by statute can (hypothetically) be overturned by statute.  Incredibly, the House of Representatives has actually passed legislation extending Haitians' protected status.  Hypothetically the Senate could pass it too.  Needless to say, it seems vanishingly unlikely given (a) the super-majority requirements of the filibuster and (b) that Congress will be out of town during August, will spend September trying to avert a government shutdown, and then will take off during October to campaign.  But I suppose it could come up for a vote if the AARP, the nursing home industry, and others raise a big enough stink.  And if Florida and Ohio Senators (all Republicans) support such legislation, maybe they will give enough other Republicans a permission structure.  Needless to say, Trump would never sign such legislation, but he doesn't have to.  He can simply let it become law without his signature.

Alas, all of this seems most unlikely, and the consequences of mass deportations will be devastating, both for Haitians and for the US.  But still this was not the worst decision.

Trump v. Slaughter

This is the one that threatens to overturn the rule of law altogether, and that strongly suggests the Supreme Court never expects a Democrat ever to be President again.  

Congress has created a number of multi-member regulatory commissions, including the Federal Trade Commission, that it requires have a mixed number of Democrats and Republicans and shields from being fired by the President.  In the case of the Federal Trade Commission (FTC), there are five members -- two Democrats, two Republicans, and a chair chosen by the President. By picking the chair, the President's party is able to have a majority.  Members serve seven-year terms and cannot be removed by the President except for "inefficiency, neglect of duty, or malfeasance in office."  All nominees must be Senate-approved.  This arrangement, it must be noted, goes back to 1914.

The Constitution gives the President power to appoint heads of executive departments, subject to the advice and consent of the Senate.  It is silent on who has authority to fire the heads of executive departments.  The First Congress vested that power solely in the President and, despite some attempts to limit that power, it has generally been accepted as belonging solely to the President until the FTC was created in 1914.  The Supreme Court first ruled on the issue in 1926 -- twelve years after the creating of the FTC -- by upholding the President's unrestrained power to fire federal executive officials.  However, in 1935, the Supreme Court carved out an exception in the case of multi-member commissions exercising quasi-judicial powers.  The Supreme Court's primary concern at the time, it should be noted, was limiting President Frankin D. Roosevelt's power to fire Hoover appointees.  Since then, Congress went on to create numerous other independent, multi-member agencies required to be bipartisan and limiting the President's power to fire members.

The Supreme Court swept all of this aside and gave the President unlimited power to fire members of such commissions.  In favor of this decision, the Supreme Court argued that all executive power vests in the President, the FTC is an executive agency, and its power must therefore vest in the President.  It also offered various historical arguments -- the Founders vested all executive power in a single official despite bad experience with King George; the states had attempted having executive councils in place of a single official and it did not work well; despite the Constitution's silence on who had power to fire executive official, the first Congress vested that power in the President alone and subsequent Congresses refrained from changing the rule for a long time, so the original statute is incorporated in the Constitution.  And Chief Justice Roberts left open that possibility that at least some non-executive officials can be protected from being fired by the President.  The Supreme Court has made fairly clear that it does consider rules protecting the Federal Reserve from being fired by the President to be constitutional, a position that Roberts reiterates.  He also mentions non-Article III federal judges, i.e., specialty judges who do not have life tenure.

Limiting the decision to multi-member boards is bad enough.  It means that the President can fire any member of such a board whose actions displease him.  The obvious example is the Federal Communications Commission (FCC), where Chariman Brandon Carr makes a regular practice of threating the licenses of television stations that run news that displeases Donald Trump.  Slaughter authorizes Trump to fire all other members of the FCC and replace them with Brandon Carr clones, and even to issue directives to the FCC to pull licenses of such stations and fire anyone who refuses to comply.  And it just might get worse.  

The opinion is studiously silent on whether any Civil Service protections from firing pass constitutional muster, even though the Supreme Court has upheld such protections since 1886.  Even if the Court has not removed Civil Service protections, one multi-member commission is the one that decides whether removals of government employees comply with Civil Service protections.  Slaughter now authorizes Trump to fire any member of the Merit Systems Protection Board who rules against him, thereby seriously undermining Civil Service protections to begin with.  But at least such decisions are subject to judicial review.  Slaughter invites challenge as to whether the Constitution allows any civil service protections at all.  While the article I am citing focuses primarily on how undermining or eliminating Civil Service protections the danger is much worse.  It means that Trump can order public employees to take illegal actions and fire everyone who refuses.  Since the President's power of pardon federal crimes under the Constitution is absolute, and since the Supreme Court has already given (Republican) Presidents immunity from prosecution for public acts, this decision poses a mortal threat to the rule of law.  And, even worse, it invites challenge to see whether the President can fire judges who are not life tenured.  

And here is the most alarming part of all.  The Supreme Court originally upheld multi-member commissions protected from firing to restrain the power of a Democratic President.  The Roberts Court has now removed that rule in order to enhance the power of a Republican President.  It seems unlikely that they would entrust a Democrat with such a power, any more than the Court was willing to do so in 1935.  And I do not see any way the Supreme Court can hedge in order to uphold such firings by a Republican and reject them by a Democrat.

That can only mean that the Supreme Court is confident that Trump has successfully rigged the system to ensure that no Democrat can ever by President again.

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*Presumably they would not have upheld the rule if she had failed to publish, or how would anyone know it was a rule at all? 

Recent Supreme Court Decisions Against Trump, in Ascending Order of Importance

 

So, what do I make of the recent spate of Supreme Court decisions?  A mixed bag, some not so bad, some truly alarming, some important and some unimportant.  I generally share the view that they decided against Trump on small things and for him on the things that matter.  But let's dive in.

Against Trump, in ascending order of importance

Watson v. Republican National Committee.

This decision upheld a statute (in Mississippi) that allowed mail-in ballots that arrive up to five days after the election to be counted so long as they are postmarked by election day.  Our side is celebrating this as a big victory.  I honestly don't think it is all that important.  Nice to have, sure, but not all that essential. Many states require mail-in ballots to be postmarked by election day, and their elections seem to work well enough.  Allowing late-mailed ballots to be counted is a major factor in California's delays in counting votes.  Yes, I know Republicans' claims of fraud are in bad faith, and that if California counted its votes faster, they would just find some other excuse.  But the long delays in knowing election outcomes in California really is a problem.  If I could trade this decision going Trump's way for some other decision going against him, I would gladly do it.*

Trump v. Carroll

The Supreme Court declined to hear Trump's appeal of the civil verdict against Trump accusing him of rape.  On the one hand, this seems like a small matter.  On the other hand, the Supreme Court has already given Republican Presidents and all-out license to crime.  I suppose we should be glad it has at least declined to immunize them from civil liability, at least for actions before they were elected.  Let's be grateful for small favors.

Trump v. Cook

The Supreme Court stayed the removal of Lisa Cook from the Board of Governors of the Federal Reserve.  It did not permanently bar her removal, merely kept her in office pending determination.  It held that (1) the government had not shown it was substantially likely to prevail on the merits; (2) the requirement that removal must be "for cause" does not mean that "for cause" is within the President's absolute and unreviewable discretion; (3) they declined to define "for cause" except to say that the national bank must be shielded from political influence; (4) staying removal pending determination of whether sufficient cause exists is necessary to shield the Fed from political influence; (5) some sort of (ill-defined) notice and opportunity is required to determine whether "cause" for removal exists; (6) the Constitution allows members of the national bank to be so shielded.  They then kicked the case back to lower courts to determine whether removal was "for cause."  

Look, if you want to be cynical -- and I do -- Supreme Court expansions of Presidential power should be read under two considerations (1) would they entrust this power to a Democratic President, and (2) if not, have they included an escape hatch to allow them to deny the power to a hypothetical future Democratic President.  The Supreme Court would probably be willing to entrust a Democratic President with the power to refuse to spend money appropriated by Congress because of a certain asymmetry there.  Withholding funds appropriated by Congress is something that Republican Presidents want to do and Democrats do not.  By contrast, when the Supreme Court gave the President immunity from criminal consequences for anything in his public duties, they left just enough wiggle room to allow criminal prosecution if a Democrat ever becomes President again.  Sure, it is grossly cynical and hypocritical, but at least it means the Supreme Court is leaving the door open to the possibility of a Democrat in the White House at some time in the future.   It is when the Supreme Court grants an unqualified power that is symmetrically just as dangerous in the hands of a Democrat as a Republican that we really have to be alarmed.  It means the Supreme Court is confident that the fix is in and no Democrat will ever be President again.  (More on that later).

Something similar applies to restrictions on Presidential power.  In this case, power to shape monetary policy looks like something the Supreme Court wants to deny to any President of either party.  If elective government can control monetary policy, the result is always the same.  They will avoid difficult fiscal decisions by using monetary policy to finance expenditures -- in simply English, they will finance operations by printing money, with resulting inflation.  The temptation applies even to Republicans who say they want massive cuts in spending but never seem to follow through.**

Trump v. Barbara

Upheld the rule that all persons born in the US are citizens, even if their parents are temporarily or unlawfully present, with the exception of children of foreign diplomats or other people present as agents of a foreign government.  Chief Justice Roberts defended this position by saying it is a longstanding rule of common law.  (Conservative jurists traditionally see common law as something sacred an inviolable, though apparently they make an exception in this case).  This ruling merely upholds a longstanding rule that has been around longer than anyone  alive today, but man, oh man, oh man, oh man, right wingers are freaking out about this one.  They appear to be taking the defeat on ballot counting in reasonably good grace, but their freakout over upholding a longstanding rule on birthright citizenship is a wonder to behold!  I can only assume it is an attempt to intimidate.  It also makes clear just how much bigotry underpins much of Trump's following.

Chatrie v. US

This one has not attracted all that much attention.  It has been mentioned as attention as the others, although it has occasionally been mentioned as a victory for privacy advocates.  But actually, thinking it over, it may be the thin end of a very large wedge.  The amount of data tech companies can sweep in on basically anyone, any time, is by itself alarming.  But at least tech companies don't have the power to arrest you and engage in the other types of coercion available to the state. We need rules constraining government's use of all that data out there, and we need it in a hurry.  The first step in that direction was apparently the case of Carpenter v. US, holding that tracking cell phone location is a search requiring a warrant.  Chatrie expanded that rule to so-called "geofence location" -- a request for information on which cell phone were within a certain radius of a certain location within a certain timeframe.  Police seeking to use this technique to solve a crime (in this case, a bank robbery) follow a three-step process.  First they get a geofence warrant for anonymous information about who was in the area of the crime around the time of the crime.  Next, the police seek more extensive, but still anonymous, information about a subset of the phone signals collected.  Finally, they narrow the information down to a small number of suspects and ask for their personal information.  

The Court held that all of this was a "search" requiring a warrant, and that the limited duration of time did not make it any less of a "search."  The owner of a cell phone does not waive the right of privacy by sharing location information with a third party (the service provider).  But searches are not banned by the Fourth Amendment, only "unreasonable" searches.  In this case, after all, there was a clear crime, and a warrant.  The Supreme Court punted on that issue and sent it back to the Court of Appeals to determine what sort of warrant meets the standard of "reasonable."

But the point is, they decided that there does have the be a specific crime, a warrant, some sort of individual and particularized suspicion and not a general dragnet.  Compare that to overall ICE trawling operations.  Maybe, just maybe, this gives us a tool to fight back.

Next up: Decisions for Trump, also in ascending order of importance.

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*There may be thin end of the wedge arguments here, that the Supreme Court would use requiring ballots to arrive on election say as preliminary to a general attack on voting by mail.
**The cuts that have been made so far, though extremely damaging to specific programs do not touch the actual bulk of the budget -- Social Security, Medicare, and military spending -- and therefore do not cut spending in any meaningful way.

What if Trump Wins: Come Together, Right Now, Over Me

So, we come to the final confrontation.  Whether democracy stands or falls depends on whether the resistance and non-resistance wings of the opposition join forces.  I previously said that the authors envisioned two alternate showdowns -- Trump trying to shut down an electric vehicle plant and Trump defying the 22nd Amendment for a third term.

I was actually wrong about that the authors envision three alternative pathways -- one for each resistance group.  While two of the final showdowns are over Trump seeking to defy the 22nd Amendment, they turn out somewhat differently, for reasons I do not fully understand.  

One other note for what it is worth.  In all cases from the perspective of a non-resistance group, you hear from a "longstanding volunteer," presumably in your group.*  They have been a "steady volunteer," but most of their work has been with the resistance.  So clearly the authors do not see these groups as mutually exclusive, but merely as matters of emphasis.

Tax resistance and the electric vehicle plant

For the tax resistance, the authors envision the final confrontation occurring when Trump seek to shut down the electric vehicle industry and force all car manufacturers to stick to internal combustion engines.**  Why the tax resistance?  The authors envision the auto workers union plans to occupy the factories and keep producing electric vehicles in defiance of Trump.  Wouldn't the strike committee make a more logical choice?  Apparently the authors had other uses for the strike committee (as we shall see) and so gave the tax resistance this job more or less by default.  The tax resistance is joined by mutual aid societies, which makes sense, since someone will have to provide financial assistance to the auto workers during their strike.  Also joining are citizen scientists who assist the EPA.  This also makes sense, since environmental scientists will presumably understand the importance of preserving the EV industry.  Finally veteran organizations and military families.  This also makes sense, since the scenario envisions Trump calling in the military to disburse the strikers, so the resistance will need people with ties to the military to keep them from turning against US citizens.  

Risk of military confrontation run high as more and more people turn out to support the auto workers.  Auto workers refuse to be provoked into violence and the military refuses to move against peaceful protesters.  Trump tries to send in the Proud Boys instead, but the military protects the auto workers.  Trump ends up looking weak and the Republican power structure (including his own Justice Department) abandons him.  He limps out to the end of his term a lame duck, his power gone.  In this the authors are influenced by the work of Timur Kuran.  Kuran looks at the French, Russian and Iranian revolutions -- all largely the work of street protests and mobs.  In all cases, the regime in power seemed solid and entrenched -- and then it wasn't.  He suggests that there may be secret, latent resentment of the status quo that goes unexpressed because no one sees anyone else opposing the regime and therefore no one dares to act.  But even a very small indication that the regime is not invulnerable may set off chain reaction.  Except that this appears to apply to a certain kind of regime -- one that is repressive enough to let popular opposition simmer a long time before it breaks into revolt, but not repressive enough to crush the revolt.  It is far from clear whether the US under Trump meets with that description.

Look, I really would prefer to see the Trump regime weakened enough stop being a threat and lose in the normal course of electoral politics than an all-out confrontation over whether elections are still binding.  But I am not hopeful it will turn out that way.  The closest we have come to this sort of scenario has been ICE surges and popular resistance -- most dramatically in Minneapolis, but in Los Angeles and Chicago as well.  In Los Angeles there were actual riots and Trump mobilized the National Guard.  Mercifully, both sides quietly backed away.  In Chicago, he was on the verge of calling up the National Guard but was blocked by the courts.  In Minneapolis, Trump was seriously considering sending in the army, but ultimately backed down in the face of public outrage.  All of this shows that Trump is far from complete consolidation of power.  And it has persuaded him to stop doing ICE blitzes, which is all to the good.  But it has not made him a lame duck.  The latest candidate for turning Trump into a lame duck is his failed war in Iran.  Losing a war has been the downfall of many a dictator.  But, again, it has not happened thus far.

The strike committee and the 22nd Amendment

It seems more likely -- very likely -- that the showdown will be over Trump trying to defy the Constitution and seek a third term.  Protests erupt across the country, Republican governors send in the National Guard, and Texas and Florida even attempt to cancel the election. The authors have the strike committee resist by calling a general strike.  And I will admit, a general strike seems like an appropriate response to so extreme and action, so maybe it does make sense to have the strike committee take the lead here, rather than in the electric vehicle scenario.  The strike committee is joined by fund raisers for non-profits, which makes sense because, again, strikers will need financial support to remain on strike.  Also joining are people providing cultural grounding for the movement.  The authors see them as important for getting disparate groups to work together.  The underground railroad also joins.  Why the underground railroad?  The authors suggest, to smuggle in whistle blowers.  But whistle blowers have their place in all these showdowns.  I am inclined to think that this is like the tax resistance -- they had to fit in somewhere and this was an open slot.  

I do sort of like the detail that non-resistance members were aware of the one-minute strikes but never took part, even though the effort would be minimal.  It drives home the point that you don't have to do everything -- at least until the final showdown.  I suggested that the constitutional convention differs from the other groups in that everyone else can take three days out to attend.  But it is even easier to stop work for one minute, yet not everyone does.

The authors offer many scenarios, all involving strikes, economic upheaval, and violence, but all ending with the same outcome.  Trump loses the election, incumbents are swept from office in record numbers, and the proposed constitutional reforms are enacted.  The authors end in a triumphant note:

Your movement didn’t just win elections — they’ve won pledges to abide by the outcomes of the deep democracy-modeled Constitutional Convention. Its sensible recommendations come from now over 2,000 cities. The federal reforms happen first. New laws affirm that money is not speech and put an end to gerrymandering. The bill for term limits for all federal leaders barely passes — only passing with a controversial exemption for current senators and house members. There is an end to right-to-work legislation and support for card check neutrality. The changes take place, buoyed by a movement that keeps up regular protests and occasional strikes. You continue your work, aware of much more to do. And you feel proud of your role in all of it.

This appears to be the authors' favorite scenario.  It is achieved by strikes, with much economic upheaval and hardship, and with violence from rightwing militias.  But it is rewarded with a sweeping win and implementation of the measures the authors favor.  

They seem less happy about the third scenario.

The Paperclip Movement and President Eric Trump

This version actually focuses less on seeking a third term than on running Eric (Don Junior having all to obviously flamed out) and trying to rig the election.  Since the Paperclip Movement is apparently an organization of civil servants pledged to refuse illegal orders, it makes sense they would lead the opposition to an attempt to rig the election.  The organization of election workers is an obvious ally.  After all, the Paperclip movement is just asking local officials to join in their pledge to refuse illegal orders.  The authors have also foreshadowed that the Paperclip Movement will ally with the constitutional convention.  “You know those government workers wearing paperclips? That movement is already using our language and guidance for their Constitutional Oath.”  So, unsurprisingly, the Paperclip Movement seeks alliance with the constitutional convention as well.  They say they want "all of your participants — city workers, police, and others" to take a pledge not to obey illegal orders on the election.  I am not quite sure I understand that.  I know that election workers are public employees, usually at the county level.  Is the constitutional convention also supposed to consist of municipal employees?  Nothing else in the book suggests that.

The authors have another problem as well.  They set out four categories of activists -- protecting individuals, defending institutions, envisioning what comes after Trump, and resistance.  Three out of those four categories have three sub-categories.  But envisioning what comes after has only two.  Otherwise each resistance group could form an alliance with one member of each other category, for four in each scenario.  But instead there are only 11 groups instead of twelve, so someone has to get the short end of the stick.  It turns out to be the Paperclip Movement.  So, Trump pushes voting restrictions (true) and sends the National Guard to polling places (plausible).  Election workers slow-walk the new restrictions.  Foreign observers observe.  The broader public protects.  Or else the governors of Texas and Florida attempt to cancel the election.  Election workers hold the election anyhow, and governors eventually back down.  (That one is more of a stretch).  Either way the election is much like 2020.  It comes down to a few swing states that are close.  Trump tries to stop counting while his son is still ahead.  It takes a few weeks, but Trump narrowly loses and, once again, attempts to overturn the result.  If the public remains passive, the army ends up letting Trump stay rather than stage a coup against him.  But if large crowds turn out to "help Trump pack his bags," it is still a very close call, but Trump ends up leaving.  The new President takes over a "battered, bruised" nation.  The coup has been averted "but just by the skin of its teeth."  

In short, Trump does not go quietly as he does in the electric vehicle scenario.  There is none of the triumphalism of the strike committee scenario.  US democracy narrowly prevails, but remains precarious.  So, why do the authors show so much less enthusiasm for this scenario than the alternative?  Obviously, I don't know.  But my guess is that this approach relies too much on government insiders (Paperclip Movement civil servants, election officials, and apparently a variety of municipal officials) for the authors' comfort.  Maybe they just like a more "outsider" approach.

I will wrap this series up with a few final thoughts.

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*Not quite.  The cultural grounding group is somewhat different. 
**That seemed far-fetched to me.  It still seems like a stretch in light of Trump's ultimate alliance with Elon Musk.  But apparently he has done a good, though more subtle, job of undermining the electric vehicle industry and has an outright vendetta with wind power, so maybe.

What if Trump Wins: Strategize Acts of Disobedience

 

Category	Activity
Protect people being targeted	Mutual aid society Fundraising for nonprofits Underground railroad
Defend existing institutions	Outreach to veterans/families/military Citizen scientist to assist EPA Find grants to strengthen elections
Envision what comes after Trump	Cultural/psychological grounding Constitutional convention
Resistance	Paperclip movement among civil servants Strikes Tax resistance

Finally, What if Trump Wins encourages strategizing resistance -- subject to some qualifications.  One is that you should refrain from violence or the threat of violence.  The other (as discussed before) is that sooner or later the showdown will probably come.  The authors believe that democracy will survive or not survive depending on whether the resistance and non-resistance wings of the opposition are able to join forces.  The authors suggest a class in civil disobedience and offer their basic premise -- power flows from the bottom up.  No ruler can do it on his own.  The ground level bureaucracy does the real work of governing.  Target the pillars of support and you can bring down the would-be autocrat.  The authors make three suggestions (presumably not intended to be exhaustive):  symbol of resistance, strike committee, or tax resistance.

The Paperclip Movement.

This is the least clear of the options being offered.  It begins by proposing that you create a widespread symbol of resistance -- a paperclip.  Apparently, that was used as a symbol of resistance in Nazi-occupied Denmark, and it seems to fit with Trump's dismissal of bureaucrats as "paper pushers."  Anyone can wear a paperclip.  The authors imagine the idea going viral.  Paperclips appear in people's social media feeds.  Popular songs are written about paperclips.  Flag-colored paperclips and rainbow paperclips become popular.  People wear paperclips on CNN.  

Once again, notice the assumption here.  The authors assume that people can display the symbol of resistance openly and without fear.  And, thus far at least, the assumption seems accurate.  We have any number of symbols of resistance.  The "No Kings" logo. A whistle to blow and warn people about ICE.  The Portland Frog.  Cute inflatable animal costumes.  There are plenty of symbols of resistance out there.

But imperceptibly, the authors start making clear that the Paperclip Movement is more than just people wearing paperclips as a symbol of resistance.  The authors appear to be thinking of a movement in the civil service roughly equivalent to their proposed military movement -- an organization of civil servants pledged to refuse to obey any unlawful orders.  The authors are unclear on any number of things.  Is the Paperclip movement limited to the federal government, or can state and local officials joint as well?  What is the role of private citizens in the movement?  Are they limited to wearing paperclips in solidarity, or do private citizens join in meetings, organization, etc?  None of that is spelled out, and I find the jump from symbol to organization to be disconcerting.

Be that as it may, although there are many symbols of resistance, nothing like the Paperclip Movement has emerged among civil servants.  Civil servants are exercising a different kind of resistance.  They are quitting.  The Department of Justice civil rights division and Minneapolis office have been hit particularly hard.  And these resignations have answered the paradox that has so long plagued civil servants when a dictator begins subverting the civil service -- stay, hope to mitigate the worst measures, and risk becoming complicit; or resign, and allow the subversion to proceed unchecked.  The answer is that if only a handful of civil servants resign, they merely smooth the way for the subversion.  But if resignations become widespread enough, they can seriously undermine the would-be dictator.  And, it appears, bring a lot of talent to the opposition.  That does undermine one of the would-be dictator's pillars of support, though perhaps not in the manner the authors had in mind.

Strike committee.

The authors envision beginning with a one-minute strike in late 2025, with plans for a 15-minute strike two months later.  I am not sure anyone would even notice a one-minute strike, but who knows.  The authors see strikes as more muscular and effective than protests.  But so far they just haven't happened.  During the height of Operation Metro Surge, Minneapolis had a one-day general strike.  But it was not able to duplicate the effort a second time.  In the meantime, Minneapolis did sustain repeated, massive marches and protests.  There is simply no sign that the country is ready to, or capable of, a widespread general strike.  Instead, Trump opponents are focusing on the supposed 3.5 percent rule -- the idea that bringing 3.5% of the population onto the streets will make things change.  (It seems to have worked in Minneapolis).

Tax resistance.

The authors propose a widespread refusal to pay taxes so long as Trump is in power.  Needless to say, this is illegal.  It also has not happened.  In fact, ironically, there has actually been some muttering on the right about refusing to pay taxes because of all the fraud purportedly being found.  

In short, resistance thus far has consisted of two main things.  One is protests, in hopes of bringing down the regime through the 3.5 percent rule.  The other is resistance to ICE, usually in the form of tracking, warning, filming, protesting, and some civil disobedience in the form of attempting to block ICE vehicles.

Government response to resistance.

If you pick a non-resistance option, the authors give the option of scaling up or not.  Either way, they anticipate that you will be able to keep on without interference from the state.  The underground railroad has to maintain operational security, obviously.  The authors recommend that anyone protecting institutions practice digital security if they want to scale up.  But none of these activities in the author's scenarios meet with an actual crackdown by government.  And all are operating peacefully and in the open by the semi-quincentennial when the resistance had been beaten and arrested.  (What becomes of the non-resistance opposition after the crackdown is not discussed).

For the resistance, the question is not whether to scale up or not, but how Trump will respond.  The authors envision that he might simply ignore the resistance or limit himself to angry tweets.  But he might crack down, either by indicting the leaders, or by having the IRS seize the organization's assets.  In other words, the authors see it as possible that even the resistance wing of the opposition may be able to operate in the open without danger for a significant time.  

They anticipate (reasonably) that any indictment will be error-ridden and "very flimsy" even in the case of the tax resistance, which is clearly illegal.  They further assume that only a handful of leaders will be arrested, and that the government will back down when large numbers of rank-and-file members demand to be arrested as well.  "Liberal pundits" (note the assumption that an independent media continues) say that this is merely an attempt to distract the public from a "shaky" economy, whiplashed by his changing policies and a sinking approval rating.  That certainly seems plausible as well.  In fact, the economy has been shaky, though far from disastrous, as a result of erratic policies, Trump's approval ratings have fallen, and independent media have continued to operate.  What is notable is that the economy and Trump's approval ratings are mentioned only in the context of the resistance wing, even though it was highly foreseeable that (1) these two things would rise and fall together and (2) Trump's presidency will probably rise or fall based on these two things.  It is also notable that so far Trump has attempted to prosecute both (a few) individual opponents and (a few) opposition organizations.  Thus far, the independent judiciary has severely limited such prosecutions.

The authors seem to regard use of the IRS as more formidable that abuse of the criminal justice system.  Certainly that was my fear because there were fewer procedural safeguards.  The authors envision the IRS freezing resistance organizations' assets and temporarily immobilizing their website, database, and organizational infrastructure.  The tax resistance, being clearly illegal gets hit hardest, with the IRS seizing its computers, files, and even coffee pots.  They envision the organizational infrastructure being much harder to salvage with the tax resistance than the other organizations.  In all cases, the propose that the IRS attempts to move "quietly," but a whistle blower alerts the organization, which alerts the New York Times, which creates a major spectacle, so again the authors assume an independent media.  

But none of these change the ultimate outcome.  The single theme underlying every such narrative is that details may differ, but that is not so important.  What is really important is whether the resistance wing of the opposition joins forces with the wider public.  If this fails, the resistance is crushed and Trump consolidates power.  And here the authors are oddly specific in their timeline.  They envision a one-minute strike in late 2025, with a 15-minute strike planned in two months.  If the strike committee does not join forces with the broader public, the authors imagine a specific date -- February 21 (presumably 2026) when the larger strike fails. Crackdown follows.  As for the tax resistance, they envision its growth sputtering out after tax day -- April 15 (again, presumably 2026), which seems like a reasonable assumption.  No specific date for the Paperclip Movement.  But invariably the authors assume that if the resistance and non-resistance do not join forces, the resistance will be crushed and Trump will consolidate power by the semi-quincentennial -- July 4, 2026.  And that is just over a week away!  

Well, I don't think the final showdown has come about yet.  But I do think that the next four to six months will determine whether democracy is defeated, or whether it lives to fight another day.  I thought the authors had two alternative scenarios as to what the final showdown would be.  Looking it over in more depth, I was wrong.  They have three.  Coming up next.

Why Did He Do It?

 

So, given just how much of a humiliating surrender we have taken in the war with Iran, the obvious question is why Trump agreed to it.  I can think of several possibilities.

They hope sanction relief will moderate Iran

One possibility is that our overall sanctions relief may be seen as a bet that if we stop treating Iran as a pariah, it will stop acting like a pariah and rejoin the community of nations and act like just another country.  Stranger things have happened, after all.  Nixon going to China and all that.  And let's face it, China really did, over time, stop acting like a pariah and become more like any other country.  But its moderation has had its limits and China remains an adversary.  

My main reason for doubting that this is Trump's motive is simple enough.  It just seems more far-sighted and better thought out than he seems capable of.  

Trump has fallen "in love" again

Trump does seem to have a chronic attraction to authoritarians of all kinds, from Putin to Xi to Kim Jong Un.  Why should Iran be any exception?  It did cross my mind that we had better not let him talk to the ayatollahs or he might end up following the usual pattern.  He is sure acting like he has fallen under their spell, and this without even any in-person meetings.  Presumably he has gotten regular reports going both ways and possibly phone conversations.

It is all about oil prices

The high oil and gas prices resulting from the war were scaring Trump and hurting him in domestic politics.  He may be calculating that if he can just bring down gas prices, his popularity will recover and no one outside of a few news junkies will care about our humiliating defeat.  My guess is that this is his primary motivation, and that the calculation will probably prove to be correct.

Trump just got bored and wanted to move on.

Also a possibility we cannot rule out.

What if Trump Wins: Defending Existing Institutions

 

Category	Activity
Protect people being targeted	Mutual aid society Fundraising for nonprofits Underground railroad
Defend existing institutions	Outreach to veterans/families/military Citizen scientist to assist EPA Find grants to strengthen elections
Envision what comes after Trump	Cultural/psychological grounding Constitutional convention
Resistance	Paperclip movement among civil servants Strikes Tax resistance

Defend existing institutions:

The introduction on defending institutions is really quite similar to the introduction on protecting people being targeted.  Instead of immigration raids, cut to healthcare spending, and rising hate crimes, this section has funds pulled from public schools, far right judges appointed, threats to independent media, and purges of the federal workforce.  Some of these targets, like the federal workforce, are governmental.  Some, like judges and schools, are also governmental, but outside normal executive function.  And some, like independent media, are clearly non-governmental.  It all sounds accurate enough, to say nothing of attacks on targets the authors never even thought of, such as elite law firms, universities, and tech companies.  While the damage to the vulnerable is less immediate and obvious than immigration raids and healthcare cuts, the damage to the social fabric is absolutely real and, over the longer run, highly damaging and disarm the institutions that might reign Trump in.   

But what can we do about it?  In the real world, most of the defense of institutions is taking place in the courts, out of reach of the general public.*  The authors make three suggestions -- organize veterans and their families, supplement federal regulators with scientific testing, and protect elections.  As mentioned before, I was surprised at the focus on governmental institutions -- the Deep State if you will -- when it seemed to me that Trump poses a threat to all institutions, governmental or not.  And the vast flourishing of non-governmental organizations is what makes America truly great.  But thinking it over more, I do believe that maintaining the independence of the "deep state" is vital to preserving the rule of law.  So by all means, let us sign up to preserve it.

Organize veteran familes

The authors postulate that the military is being pulled two ways -- between higher officers who are old-style institutionalists, but also bound to obey orders, and the rank-and-file who are more pro-Trump.  They have officers "slow walk" plans to leave NATO, generals fired and even a first lieutenant (!) named Chairman of the Joint Chiefs of Staff.  We haven't got to the first lieutenant yet, but Pete Hegseth is clearly purging the top ranks and thwarting promotion of anyone who is not white and male.  We also have the military committing war crimes on the high seas and in bombing Iran.  

In any event, the authors propose that you talk to veterans and their organizations and families about the need for the military to stay out of partisan politics and the fearful danger that they might be called on to fire on US citizens.  They imagine a lot of quiet persuasion taking place outside the public eye, like talking to a colonel's wife about how to keep her husband from getting too Trumpy.  And non-commissioned officers expose rightwing extremists in their ranks planning to use a rightwing militia attack on Black business as cover "for more extreme efforts," whatever that means.  (Once again those rightwing terrorists make an appearance).

In protecting people being targeted, the authors offer the choice of staying small, nimble, and local; scaling up on a local level; or going national.  For institution, they offer only the options of staying "small, nimble, and quiet" or becoming larger and open.  In the military instance, there are excellent reasons to stay quiet.  "Being quiet allows you to have some intimate conversations with people inside the military you might miss if you are more open."  A very realistic concern in this case.  Becoming more open appears to mean going onto social media and attracting volunteers.  It calls for taking classes in digital security to avoid doxing.  But the outreach remains private.  The only real difference the authors propose is that if you go public, you can refer the colonel's wife to a network instead of just giving her personal suggestions.  The basic need to stay quiet remains.

I am assuming this proposal is based on calls for retired generals to denounce inappropriate or unlawful acts by Trump.  While there have been occasional reminders that soldiers do not have to obey unlawful behavior, retired military officers have been disturbingly quiet.

Citizen scientists:

Team Trump is both relaxing regulatory standards and firing so many regulators as to obstruct enforcement of even the most relaxed standards.  He is particularly protective of pollution from coal.  All of this is spot-on, of course, and highly predictable.  Citizen scientists can do their own environmental testing to supplement an overtaxed EPA and give it guidance in setting priorities.  As in other cases, the authors try to be realistic by starting small -- testing proves serious hazards from a coal fired plant, and it is made to pay a small fine.  As work begins to scale up, climate-change-caused fires put in another appearance.  This time you are able to do real-time tracking that is vital to the public's health and safety.

The authors treat the decision whether to stay small or scale up similarly to the military -- staying small allows you to have intimate conversations you might otherwise miss; going public requires digital security to avoid doxing.  But really, this work seems a lot less dangerous than outreach to the military.  I suppose some EPA employees might face retaliation if word gets out that they are receiving input from citizen scientists. But this just isn't subversive in the same way that military outreach is.  The decision whether to stay local or scale up here is treated similarly to how it is treated with mutual aid.  Stay local and you can persuade your town to rewrite its ordinances to block expansion of some factories and plant more trees.  Scale up, and you can attract participants across the country and get funding and interns from a university.  

Incidentally, this is one of the very few cases other than the elections section that mentions local government.  In the emergency fundraising section, local government puts in a brief appearance for being too sluggish in offering loans to people whose businesses burned down.  In the section on news stories, state and local government step up to enforce anti-discrimination laws when the federal government refuses.  And there are sanctuary jurisdictions and states that mobilize the National Guard against immigration.  But local government only really comes into focus into the elections section, and necessarily so.  US elections are administered at the county level.

Protect elections:

This is obviously very important.  Indeed, the survival of democracy rests upon it.  If the book's 11 options were my real-life choices, this is the one I would choose.  Election workers have faced scrutiny, pressure, and even threats on Trump's say-so.  The authors descend into specifics here.  They recommend a Protect Our Elections report and threats to election workers in Washoe County, Nevada.  One major problem is a lack of funding.  Public funding has been cut and some states have banned private funding.  (Certainly, the senior attorney at my office views private funding with extreme suspicion and makes cracks about "Zucherbucks.").  So, you search for grant money, which apparently is out there, though wholly uncoordinated.  How that is reconciled with a ban on private funding is not addressed.  But, once again, the story starts small as you obtain a $500 grant for the local office.  You go to work on finding what grants are out there and assembling the information into digestible form.  Thanks to the grants, election infrastructure strengthens.  Workers can improve trust by explaining the election infrastructure safety, security, and responsiveness ahead of the election instead of after.  Climate-change-caused fires make another appearance, this time destroying mail-in ballots, but you are able to replace them quickly.  

Scaling up once again requires digital security but attracts more volunteers.  I was at first dismissive of the need for security.  This is not a secretive, semi-legal campaign of potential subversion like the military outreach.  It is wholly legal and appropriate.  That was uncommonly naive of me.  In light of recent cries of election fraud and FBI raids on voting rights groups, this is actually quite potentially dangerous work.  Unlike other cases, the authors appear to see scaling up as clearly the better course.  Staying local means passing around a spreadsheet of grant opportunities and makes for a modest strengthening of the local infrastructure.  Going national means setting up a nationally known clearinghouse of grant opportunities and a website where applicants can pre-qualify.  (This recommendation comes specifically from the Protect Our Elections report).  This differs from, say mutual aid or environmental activism in that it deals entirely in knowledge, which can be frictionlessly spread nationwide.  However, non-presidential elections are mentioned only in passing (mention that the midterms are coming up, ballots having to be replaced) and says nothing whatever about the outcome of any non-presidential election.

I will make a few more comments about the helping and protecting sections.  The protect people sections all begin with immigration and move on.  None of the defend institutions actions discuss immigrants at all.  Times rightwing militias burning buildings come up -- four, in all three protect people scenarios and the military outreach scenario.  Number of times climate-change-related fires come up -- also four, in the mutual aid society, joint emergency fundraising, environmental protection, and elections sections.  No militia attacks on voters, though, perhaps surprisingly.

Now on to envisioning the future and offering resistance.  Rightwing militias and climate-change-related fires will drop out.

_____________________________________________________
*The authors recognize as much, having Trump's attempts to replace 50,000 to 100,000 federal employees delayed by the courts but eventually go through.