The weeks following the election were dark. Once the sharpest pangs of despair subsided, attention shifted to what was to come. Would the new administration realize Democrats’ worst fears or was there some sliver of hope? The long transition gave a space for forging new narratives. Fabulists gave it the college try. A popular canard held that ascent to the Oval Office would ennoble The New Occupant, that the Resolute Desk would be a philosopher’s stone to transmute the toxic narcissist into a lion of public service. There would be an epiphany. Andrew Johnson would become Abraham Lincoln. Right. Other falderal making the rounds contended that the GOP’s Solons would erect guardrails to keep President Bigly between the ditches. The absurdity of such expectations soon became evident. A paraphrase of a comment attributed, perhaps apocryphally, to the Medici Pope Leo X better characterizes the comportment of the about-to-be chief executive: “Now that we have the presidency, let us enjoy it.”
Election-induced paralysis gave way to hunger for activity, something to fill the void, an antidote to gloom. There was a Renaissance in interest in civics, the high school course that – essential though it is – has been excised from many secondary-school curricula. The November 2016 election was a debacle not just at the presidential level. The Democrats gained seats in Congress but didn’t establish a majority in either chamber. Down the ballot, the 2016 election underscored a damaging legacy of the Obama era: From 2009 to 2016, Democrats surrendered control of fourteen statehouses, thirteen governorships, and 816 state legislative seats, a hemorrhaging of legislative power unseen since the Eisenhower years. The Undramatic One far better safeguarded his own electoral fortunes than he rendered aid in the states. (Quorum, “Under Obama, Democrats Suffer Largest Loss of Power Since Eisenhower” [www.quorum.us/data-driven-insights/under-obama-democrats-suffer-largest-loss-in-power-since-eisenhower/, accessed 26 April 2021]; National Association of State Legislatures, “State Vote 2016: Analysis on the Election from the State Perspective,” 14 November 2016 [https://www.ncsl.org/Portals/1/Statevote/StateVote_Combined%20Presentation.pdf]). The civics conundrum was how an opposition party wielding no national lever of power and floundering in the states could restrain a potentially rogue president and a ruling party betraying signs of political and constitutional sociopathy. Did anything remain in the toolbox, constitutional, extraconstitutional, sub-constitutional, super-constitutional, supra-constitutional, whatever?
For a time, activism became a lifestyle. The urge grew to make a loud public noise, to exercise atrophied First Amendment muscles. The Women’s March following The New Guy’s inauguration most fully expressed this impulse. The geyser of atrocities erupting in Washington made the question not whether but what to protest. Action lists – things-to-do for the activated – proliferated. More than once that I sat in a coffee shop and overheard groups, frequently women, hammering out strategy and weighing the efficacy of tactics. The nascent Trump regime galvanized opposition.
The bit below is another email to a friend suffering post-election angst. It was written a month and half after the election and well into President-Elect Trash Fire’s shambolic transition. Those days were dark both politically and personally. The Better Half and I were in California to visit my in-laws. My father-in-law died just before Christmas. His passing was peaceful and perhaps even merciful. The election had disturbed and enraged him. Part of his ire during the intervening weeks had been directed at the electorate. He muttered darkly and took pleasure from a resurrected H. L. Mencken saw: “People deserve the government they get and they deserve to get it good and hard.” A day after my father-in-law encountered the great mystery, President-Elect Covfefe reportedly quipped, “Let it be an arms race because we will outmatch them at every pass and outlast them all.” This nonchalance about rekindling a nuclear arms contest was a slap at my father-in-law’s career as a scientist in government service and a public intellectual. He didn’t need to hear that and what came afterward.
Later that dismal week, The Better Half and I had lunch with a friend, an executive at a Silicon Valley tech firm. We reminisced about the departed, but the conversation soon shifted to The Incoming Guy. This conformed to an enduring conversational pattern: The most casual, inconsequential chat always came around to His Biliousness. Our friend was agitated, as were we all. A follow-up email from him arrived the next day. Because of a poorly preserved, now defunct, email account, my response survives but not our friend’s initial correspondence. The gist of the exchange was how best to defang the new regime. Some topics broached by our interlocutor have faded into oblivion because my replies are unspecific. The rest of it illustrates the groping for ways to act, not to accept supinely what was to come, to think unconventionally – maybe even larcenously – and to resist on many fronts. It also conveys top-of-mind concerns in the moment. Could a recess appointment reverse the shabby treatment of Merrick Garland? Could Mr. Obama employ pardons strategically before his departure, perhaps to protect those vulnerable under the new dispensation? How might government records be preserved? How could the anticipated assault on Medicare, Medicaid, the Affordable Care Act, and the rest of the social safety net be blunted? What would be Mr. Obama’s role in his post-presidency? Beyond addressing these issues, I gave my standard advice regarding how to thwart a wannabe authoritarian: Join the ACLU.
Here’s the bit:
Dear —–,
I too am a longstanding fan of both Robert Reich and Michael Moore. Regarding the list of suggested actions, I still think that no. 1 is problematic. The Republicans have effectively scotched Obama’s use of recess appointments for the lower federal courts by never allowing Congress to go into recess technically. I would be surprised if they’re not doing that now since they are determined to retain control of the appointment. If they’re not doing this or if their tactic applies only to the lower courts and not the supremes, it might be worth a shot but would at best likely only delay the inevitable. In any case, I would love to be corrected regarding any misconceptions I might have about this. The mistreatment of Merrick Garland has been one of the most deflating bits of this sad, sad, possibly needlessly sad year.
Obama could certainly do no. 2. Pardons for groups rather than individuals have been issued in the past. The president, however, has no power to pardon anyone for a crime not yet committed, so the efficacy of the former might be undercut by the latter. No one can be issued a permanent get-out-of-jail-free card.
Obama seems to be on the verge of doing something along the lines of no. 3, if this morning’s news is any indication. Good for him.
The agencies seem to be doing no. 4 already and it’s possible that Obama has quietly already made a move in this direction. Let’s hope.
Nos. 5 and 6 are great ideas and you’ve already mentioned the principal caveat in both.
No. 7 is also a good idea. The Republican response to this might be that they have not yet comprehensively outlined their plans for Medicare and Medicaid. Regarding the ACA, they undoubtedly will argue that it will be replaced with something far superior. The recent jumps in rates and the flight of some of the insurers unfortunately give them some cover on this. I personally think they will slow walk the changes in the ACA. They’ll vote to repeal but give the measure a long sunset to contain some of the political blowback. Another problem will be that Trump via Twitter will directly muddy the water for many of those most affected. The sad reality is that many of those bound to suffer most exist in a void of information and the Donald will likely for some time insulate himself from the consequences of his actions by employing Obama as scapegoat in chief.
In reference to no. 8, as we discussed yesterday, I think Obama should strive to be the best ex-president he can be and to anoint himself Trump’s personal and perpetual and constant gadfly if for no other reason than to preserve solidarity and maybe even a bit of optimism among right-thinking people. There have been modest signs over the past few days that he intends to do something like this. He’s popular at the moment and he shouldn’t waste that.
Beyond this, everyone should continue to fight the good fight in any way they can. After the debacle in 2004, I joined the ACLU. Their work in preserving transparency in government and individual freedom of expression and in defending people from aggressive action by the authorities will become even more important once Trump assumes office. If you have any friends who are attorneys and might be willing to offer a bit of pro bono, they could do worse than volunteer. Since you likely have an iPhone, the ACLU website offers an application that allows you to film and upload to the organization directly any incident in which you think someone’s rights are being violated. This application may be what finally compels me to surrender my Blackberry. Sigh.
It was fantastic to see you yesterday. Please stay in touch, especially during these troubling times.
Yours warmly, David