August, 2019
Washington -- Time: July, 2019. Place: Maryland suburbs of Washington, DC. Occasion: Small dinner party with home-grown organic food from a garden. Voices: Guests and hosts, paraphrased as recalled. Topic: A Trump second term.
"He's going to be re-elected."
"The Democrats just can't seem to get it together."
"That's for sure. They're hurting themselves with this debate format. It's keeping some of the better candidates out."
"And their bi-coastal strategy, they're going to repeat the mistakes of 2016. The numbers don't add up."
"If he's re-elected, there will be violence."
"Violence? Of what sort?"
"Along class lines, because of inequality, and along race lines."
"Why do you think that? Who's going to fight? Liberals don't arm themselves with guns."
"It will be violence like in the 60s and 70s."
"You mean Kent State."
"Yes, and the Vietnam protests."
"What did that accomplish, other than an authoritarian crackdown? Violence is a non-starter; it's no solution to anything."
"Right, it first causes a crackdown and then it becomes an excuse for creating dictatorial powers. No one should be talking about violence as some sort of remedy or solution, it's the opposite."
"We should be looking realistically at what a full-blown authoritarian government looks like if Trump is given a second term."
"Or if he calls the election for himself and refuses to leave."
"There are authoritarian governments that are world powers — China, Russia. Maybe that is our future."
"It's possible we could slip into it without much protest — a Trump election victory, a couple more Supreme Court appointments that would rubber-stamp his powers."
"We've already seen the Court enhance Trump's powers to an extent many of us never thought possible."
"What do you mean?"
"Undermining Congress's power of the purse in the border wall matter, for one. On top of refusing to recognize political gerrymandering for what it is, key to one-party control."
"Maybe more states will reform themselves?"
"Yes, here's hoping."
"I see the possibility that some states will resist an authoritarian federal government and that they will become enclaves that will hold out. States have sovereign powers they can exercise."
"In spite of the federal supremacy clause?"
"In some areas."
"You mean like California's own emission standards?"
"Yes, but that's not what I was thinking about. I was thinking more of governors' powers over their own militias, their state guards, in cases where their state supreme courts might differ with the federal courts."
"What kinds of cases?"
"State constitutions contain bills of rights, sometimes worded identically to those in the federal constitution.* What if a governor said a president's action was a violation of his state's bill of rights?"
"Jerry Brown refused to let his state troops participate in some of Trump's border actions."
"And got by with it?"
"Yes."
"I don't think it's hard to imagine a scenario in which a Trump-appointed Supreme Court majority would give the federal government powers over searches and seizures, like China's government has."
"You mean face recognition and all those surveillance cameras?"
"Yes, which leads essentially to a police state. Or that a Trump court would condone what many people consider cruel and unusual punishments."
"Such as?"
"Family separations. I could see a state court drawing the lines differently from a Trump court on that and many other rights, including due process, too."
"Lots of people are already upset at family separations, even on the right."
"And governors would use their troops to block federal action?"
"With popular support, yes, especially if safety and health and basic rights of everyone are endangered. What if the EPA allows a Koch factory to dump poison into drinking water? Environmental abuses are rampant in authoritarian countries."
"I don't see it. Democrats have always put their faith in a strong national government, and can't even begin to think that 'states rights' might save democracy."
"You may be right."
"I think a good question for governors running in 2020 would be how he or she would defend rights guaranteed under that state's constitution, should they be threatened by the federal government."
"That's a scary question."
"Right now I see Trump winning a second term in large part because he gets to appoint Supreme Court justices."
"People will overlook anything for that, even his bad behavior."
"Which is why someone should challenge the idea that Trump's court appointments are a political talking point in his favor."
"That's key for the anti-abortion people."
"But they're a distinct minority."
"Still, a lot of voters are under the impression that his appointments are of traditional legal conservatives who follow precedent, not activist judges."
"How can people look at Heller and Citizen's United and think these are not activist judges?"
"Heller, that's a good one. Speaking of state militias. Just wait for a governor to put a militia to use as the Constitution allowed."
"Never happen."
"Just wait. When the consequences of a second Trump term start to sink in, people will be looking to states as enclaves of democracy where their rights and lives are protected. We may even see a migration of people."
"I'm looking at another country to relocate."
"Don't give up on our own just yet."
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*The late U.S. Supreme Court Justice William Brennan wrote: "[T]he point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law–for without it, the full realization of our liberties cannot be guaranteed." https://www.law.berkeley.edu/wp-content/uploads/2017/07/Brennan-90_HVLR_489.pdf
