Just a month ago, in a harbinger of things to come, the conservative side lost in the D.C. Circuit Court of Appeals, and almost no one seemed to notice. It was one of those cases in which the expansive powers of the administrative state come into possible conflict with the moral logic of the separation of powers. In Lucia v. SEC, the argument centered on the question of whether administrative judges are wielding the power to settle cases decisively and issue orders, even though they are not appointed and confirmed as judges according to the form prescribed under Article III of the Constitution. The complainants lost with the unanimous judgment of a panel of three judges—two appointees of Obama and one of Clinton.
The argument of the complainants might not have offered the strongest case against the incursions of the administrative state, and yet the outcome had the eerie ring of things sure to come. It also touched on things that now bitterly divide conservative lawyers from the Never Trumpers. The lawyers may have as much of an aversion as I’ve had to Donald Trump, but they are the ones who are sent into court to resist the mandates of Obamacare and to defend the Little Sisters of the Poor, the owners of Hobby Lobby, or the doctors and nurses who are invoking their rights under Hyde-Weldon Act not to be forced to participate in abortions. These lawyers have a vivid sense of what is at stake in this election. They know what they are facing already, and what they will be facing in deeper measure when Hillary fills more of the lower courts with the kind of judges appointed by administrations of the Left—young lawyers from the best schools and the professoriate, ready to sustain any measure brought by a leftist administration. At a recent gathering in Washingon, D.C., a conservative lawyer, active in the bar of the Supreme Court, turned furious when he heard the declarations of a Never Trumper: “Get hold of yourself,” he said, “and get serious. Look at what is plainly before you.”
For the conservative lawyers, these are not whimsical visions of Christmas Future but a grim state of affairs that is already taking shape before them. The lawyers simply cannot be as blithe as my friend George Will and the other Never Trumpers, who write off this election and look to a better future rising from the ashes. The conservative lawyers can taste the ashes now. Yes, after Goldwater lost in a landslide in 1964, the Republicans came back strongly to win in 1968. But have we forgotten that in the critical aftermath of 1965-68, the thrust of the liberal program was so sharp and advanced that the regime itself changed? The federal government now swept past all the barriers that once had put up resistance—as in extending controls on local schools or bringing under the review of federal courts the decisions made on hiring and firing in private businesses, even small colleges.
After all, how did we get to the point where a mere letter from the Office of Civil Rights—not an Executive order, or an advisory from the Department of Justice, but a letter—was quite enough to induce school boards in different parts of the country to reverse their policies toward the transgendered in bathrooms? This state of affairs can be explained only by the wide dependence of local schools on federal aid. And that enlargement of the federal role was deepened and confirmed by the surge of the Great Society, beginning in 1965. What was hardly conceivable before 1964 has become routine in our own time.
My friends who are concerned about national security worry about the temperament of Donald Trump. But what is it that the national defense is supposed to “secure”? Not merely our physical lives, for by that standard those blond blue-eyed people in Minnesota had nothing to fear from a Nazi victory in the Second World War. They were not in danger of being sent to death camps. They were threatened, like other Americans, with the imposition of a totalitarian regime, gravely altering the terms of principle on which we live together as a people. We must take seriously that we are very much threatened now with a change of regime. President Obama has already set a number of precedents in reaching, with executive orders on immigration or the environment, quite beyond any statutory ground that could authorize these moves. With the acquiescence of his party, he has already made a nullity of the Congress and the separation of powers.
But if we put that matter aside, and if our main interest lies in protecting the lives of our people, why do the mavens on national security show no concern for the 1.2 million innocent human lives taken each year in abortion? Does it matter that 177 Democrats voted against the bill to punish surgeons who kill babies who survive abortions? The Democratic position, led by President Obama, is that the right to abortion is not confined to pregnancy; it entails nothing less than the right to kill a child born alive. That is the position that Hillary Clinton should be called upon to defend right now. Have we suffered such an erosion of sensibility as a people that this killing of children born alive is no longer worth noticing? True, we have no guarantee that Trump will appoint decent judges. But so far he is drawing his advice from the right quarters, and we know exactly the kinds of people Hillary Clinton will appoint. It’s a mater of a wild card versus a brutal sure thing.
I yield to no one in my recoil from Donald Trump. But for anyone who shares the perspectives of the Republican Party, far more is involved here than aversion to an implausible candidate. A conservative should have an interest in repealing and replacing Obamacare, a program that tends inexorably to the political control of medicine, with everything drawn into a national budget, subject to national rationing by a federal commission. A conservative should have an interest in repealing the Dodd-Frank Act, with its heavy toll of regulation, suffocating private businesses with vast new expenses in paperwork and compliance. He might have an interest also in scaling back the corporate tax rate, which leads to “inversions” and reduces the incentive to invest and create new jobs.
None of these things can be accomplished without a Republican president to sign such measures, passed by a Republican Congress. These are the issues that can win for a conservative candidate, and yet the conservative party has at its head the only Republican candidate who seems incapable of explaining them. Even on the matter of crime in the streets, the rising homicides in Chicago and Baltimore, all Trump would need to say is that his Department of Justice would cease to be an engine for badgering the local police from the active enforcement of laws. These are measures that spring from the character of the conservative party. You might say that they come out of the Republican “brand.” It is another of the ironies and reversals of this campaign: A man who has made his business in branding finds now that the Trump brand is a loser. He can win only because voters are drawn to the Republican brand as it has been shaped by Paul Ryan and others. What we need, then, is a replay of the Declaration of Morningside Heights, the agreement that brought together the warring wings of the party, represented by Dwight Eisenhower and Robert Taft, in 1952. The candidate of the conservative party has a chance only if this election is waged as a campaign to enact Republican measures—measures he did not shape and cannot explain.
Perhaps the only thing that can rescue Trump at this moment is that expectation that he will be working hand-in-hand with Paul Ryan and Mitch McConnell to enact that Republican program, beginning with the repeal of Obamacare, the reduction of taxes, the scaling back of regulations. But all of this would require Trump to meet with Congressional leaders and convey those central points. And yes, for Trump that would require a self-effacement as uncommon as it is wrenching: the confession that the election is finally about something more than himself.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding in Washington, D.C.