Igenerally find myself in emphatic agreement with Yuval Levin, but I am not persuaded by his essay in the magazine, in which he contends that the stakes of the election are lower than is commonly thought.
It is true that our system has proven resilient. It is not the brittle thing portrayed by the competing camps in the contest — MAGA leaders who predict that, if Kamala Harris wins, we’ll never have another election and may soon not even have a country; and the anti-Trumpers (mostly Washington Democrats, along with plenty of anti-Trump Republicans and independents) who depict “our democracy” as if it were hanging by a thread and fear that Donald Trump’s election would be a triumph of fascism (which Trump evidently forgot to install his first go-round).
As a conservative, I’m not in either of these camps.
Yet, while I maintain faith in our system, there are danger signs. It matters who wins because the system’s checks against profound abuses of executive power (including refusal to execute the laws faithfully) work well against Republicans but are significantly degraded when a progressive Democratic administration is in office. And this is because progressive Democrats have a methodical plan for defeating the system’s checks, while Republicans mostly try to work within them. I am as put off as anyone by Trump’s lauding of dictators and jealousy of the loyalty (or at least petrified obedience) they inspire; but if you look at his executive orders and governing agenda from 2017–21 — as opposed to his all-id-all-the-time tweets — you find that he governed within the white lines.
Yes, the soft coup attempt at the end was impeachable; but it was also futile. By contrast, in day-to-day governance, his most notable deviations from lawful, accountable governance were the attempt to repurpose Defense Department funding for border construction that Congress had statutorily approved but declined to pay for, and the acquiescence to administrative state authoritarians during Covid. Those were child’s play compared to the practices of Presidents Obama and Biden, who usurped legislative prerogatives (in Obama’s case, even after conceding he had no such authority).
Yuval writes:
The American system pits multiple power centers against one another. Advancing meaningful policy objectives requires relatively broad majorities that endure for an extended period — long enough to craft legislation, see it through the series of complex obstacles that must be overcome in our bicameral Congress, and secure a presidential signature. Narrow majorities can rarely do this effectively, which means that close elections generally do not yield transformative governance.
He’s right that this is the way the system is designed to work. But it’s not how the system works — at least not reliably and not on vital matters.
The most meaningful policy objective that has been advanced in the United States in the last two decades is the progressive Democratic project to erode American border security, trigger the influx of millions of aliens (including from societies that, like progressive Democrats, are hostile to American constitutional principles), and exploit those millions of aliens to expand the Democrats’ political base and alter the electoral map. (One needn’t be adherent to the dark theory that Democrats are strategically seeding aliens in red and purple states to transform them into blue states in order to comprehend the Democrats’ gains in political representation and Electoral College votes thanks to open-border policies — gains noted by Peter Kirsanow last week, relying on a Center for Immigration Studies [CIS] report.) The Democrats’ project has advanced by leaps and bounds in the past dozen years despite a fairly close election in 2012 and very close elections in 2016 and 2020. If Harris wins in what is shaping up as an extraordinarily close election, the open-borders project will make further strides.
It is not enough to say that this enduring transformation is being accomplished without legislation. Perversely, it is generating legislation (unable to pass, so far) that would undermine border-security law under the guise of stemming the tide.
This is so because Democrats have a counter-constitutional strategy that works and that obviates the need for the legislatively driven route to meaningful policy change that Yuval describes. The strategy is: Use raw executive power to change the facts on the ground.
The Obama-Biden and Biden-Harris administrations used the Constitution’s vesting of law-enforcement authority in the executive branch as license not to enforce the laws — knowing that Congress and the courts were impotent to force a president and executive agencies to execute the laws faithfully. (Progressive Democrats in Congress have rendered toothless against Democratic administrations the main legislative checks on presidential derelictions of duty — impeachment and the power of the purse.) Indeed, the Supreme Court declined to uphold Trump’s retraction of DACA (Deferred Action on Child Arrivals — Obama’s de facto amnesty fiat) on the specious ground that Trump had failed to comply with the Administrative Procedure Act — notwithstanding that Obama had not implemented DACA under the APA. The aforementioned CIS estimates that there were over 14 million illegal aliens living in the United States as of March 2024 (a figure that doesn’t count well over a million additional illegal aliens who entered the U.S. through the end of the fiscal year in September). About two-thirds of countries in the world have a total population of less than 15 million.
The collapse of border security, the inevitable surge of illegal immigration that followed, and the unsustainable strain thereby imposed on cities and towns across the nation (education, health-care, housing, social-welfare, and law-enforcement costs) are results of a major policy shift willfully accomplished by Democrats through executive power, in the absence of any meaningful legislation. In fact, it was done in the teeth of existing legislation.
The ballyhooed bipartisan border-security bill floated earlier this year (an atrocious proposal that failed owing to its merited unpopularity, not to Trump’s opposition), was a not-very-stealth effort to lock in place nearly a dozen years of non-enforcement under Obama and Biden. Among other things, it would have (a) effectively superseded the command in current legislation that illegal aliens be detained until the conclusion of legal proceedings; (b) normalized the influx of nearly 2 million additional illegal aliens per year (thereby intensifying the incentives for still more aliens to travel to the U.S. and enter illegally); and (c) endorsed Biden’s “parole” program, which is illegal under current law.
That is, by changing the facts on the ground through executive power, Democrats changed the legislative terrain. In the future, “reform” legislation will either bank and build upon unlawful Obama and Biden practices; “reform” proposals that seek to nullify these practices will fail — with the media scoffing, “So, you’re going to deport 15 million people?” — ensuring a continuation of the status quo.
Yuval acknowledges that one of the “dramatic policy actions” Republicans could pursue is “a massive crackdown on illegal aliens.” I agree with him that this “would be difficult to achieve with narrow public support, and could quickly prove unpopular.” But putting aside whether public support for a significant deportation project would garner narrow support, the only reason we are talking about this possibility is because Democrats flooded the nation with millions of illegal aliens, an unpopular policy accomplished not only without legislation but against existing law.
In foreign policy, the most consequential development of the past decade was Obama’s Iran nuclear deal — the Joint Comprehensive Plan of Action (JCPOA). Under the Constitution, a foreign pact of the nuclear deal’s magnitude should either have been submitted to the Senate as a treaty or submitted to the full Congress for necessary enabling legislation. Instead, Obama structured it as an executive agreement among the “P5+1” countries (the five permanent United Nations Security Council members — the United States, Britain, France, Russia, and China — plus Germany).
To end-around the Constitution and Congress, the JCPOA was formalized in a Security Council resolution (No. 2231, adopted July 20, 2015). Congress failed to mobilize to stop the agreement, enacting the Iran Nuclear Review Act, which effectively rubber-stamped the JCPOA (reversing the Constitution’s presumption against treaties by requiring two-thirds disapproval by both houses rather than two-thirds approval by the Senate, as required by the Constitution’s treaty clause). Senior Republicans rationalized this dereliction by claiming, absurdly, that it was necessary to force Obama to reveal the terms of the deal — whereupon Obama structured the JCPOA to shield key terms from Congress anyway (under the ruse that the U.S. was not a party to agreements between Iran and the U.N.’s International Atomic Energy Agency).
While estimates vary, the JCPOA yielded close to $120 billion in immediate sanctions relief for Tehran, and close to $200 billion in total economic benefits. Because the agreement consciously avoided Iran’s status as the world’s leading state sponsor of anti-American terrorism and its use of proxies to wage a decades-long eliminationist war against Israel, the JCPOA placed no restrictions on Iran’s use of its windfall to arm and fund these proxies. Nor did the JCPOA address Iran’s ballistic-missile programs, restrictions on which expired in October 2023 — consistent with the aforementioned Resolution 2231. Thanks to that development, Iran has robustly armed Russia with missiles and drones in its war of aggression against Ukraine, in addition to providing Hezbollah, the Houthis, and other proxies with over 150,000 missiles (thousands of which have been launched against Israel). Moreover, the JCPOA committed the United States not merely to indulge but to cooperate with Iran’s nuclear program, on the fiction that it was strictly a civilian project.
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Trump finally withdrew the U.S. from the JCPOA long after much of the damage had been done. His so-called maximum-pressure campaign of sanctions and oil-export restrictions on Iran did succeed in reducing Iran’s capacity to generate revenue and continue funding its proxies. Biden, nevertheless, reversed Trump’s policies, restoring Tehran’s revenue streams. This explains Iran’s capacity to wage a seven-front war against Israel, abet the Houthis’ paralyzing of commercial shipping, and supply Russia with aerial weapons. I mention that because the Biden-Harris goal, from the start of the administration, has been to restart the JCPOA: Note the administration’s position that it would be reviving the existing JCPOA, not entering a new agreement. Therefore, say Biden-Harris officials, no congressional approval would be necessary.
Again, a tremendously important change of policy that would change facts on the ground and markedly alter the landscape on which any future legislation could take place — all done by executive fiat.
For Democrats, I believe the Constitution’s guardrails are restrictions to be vigorously enforced when Republicans are in the White House, but bumps in the road to be navigated over or around when a Democratic administration wields executive power. In addition, Democrats have thought this through more than Republicans have and lack the conservative impulse to preserve the Constitution — instead, they would invent novel rights while repealing several that are expressly preserved in the document. Democrats shrewdly assess that Republicans will often join with them in reining in executive excess by Republican presidents, but are ineffective in combating overreach by Democratic presidents, which congressional Democrats customarily abet. And even though it is true that congressional Republicans block progressive legislation, they do not put up much resistance to any but the most radical Democratic nominees to executive agencies and the bench.
The stakes of the 2024 election could be very high depending on who wins. I don’t approve of either of the two candidates — I think they’ve both committed impeachable offenses and demonstrated unfitness. I’m voting for Trump. That’s not an endorsement, it’s just how I’ve resolved the choice — I don’t understand how any conservative could support Harris, but I sympathize with those who can’t vote for Trump.
To my mind, it is still a binary choice. I am a person who could write in, say, Clarence Thomas, and feel good about it. At the same time, I don’t have moral qualms about choosing between unsuitable candidates; the choice is not my fault — any more than it’s a juror’s fault that he has to decide on a verdict, guilty or not guilty, when the prosecutor’s witnesses are scoundrels but the defendant appears culpable. I did what was in my limited ability to do to urge Republicans not to nominate Trump; had they picked someone else I believe they’d be winning the election going away.
Do I think Trump would appoint better people than Harris would, including a number of strong conservatives? I do indeed. Trump is not a committed conservative, but his last administration had much for conservatives to like; and even if I don’t have hopes as high for a new Trump-Vance administration, I’m convinced a Harris-Walz administration would be a disaster for the country.
But here is my main calculation: The system’s guardrails — Congress, the courts, the administrative state, the armed forces, the state governments, the media, and business leaders — are zealous in policing against executive excess when a Republican is in power. The worst thing Trump did was the soft coup attempt, and it never had a smidgeon of a chance. By contrast, the guardrails are not nearly as effective in checking executive overreach, usurpation, and other abuses of power by Democrats — in fact, many of the institutions we rely on as checks become, instead, progressive cheerleaders. As a result, I have considerably less trepidation about a Trump presidency than a Harris presidency.
