[Disclosure/disclaimer: As with all posts labeled “Editorial,” this post reflects the views only of its author. The views expressed do not purport to represent those of Lite DePalma Greenberg & Afanador, LLC or any of its members, employees, or clients].
In tomorrow’s election, voters have a choice between Donald Trump, who served as President from 2017-21 and seeks to return for another term, and Kamala Harris, who served as Vice-President in the Biden administration from 2021 through the present and seeks to become President. The governing experience of the two major party candidates offers insights into what each would do if elected to serve as President beginning in 2025. Their respective campaigns shed further light, but largely reflect what the respective candidates have done, or not done, while in their respective offices.
There are many topics that could be addressed in an editorial about the candidates. This editorial will focus on four issues that have loomed especially large during the campaign: immigration, the economy, foreign policy, and democracy. Additionally, since this is an appellate law blog, the matter of judicial appointments will also be discussed. There is much more that could be said about these topics, so this post is admittedly not exhaustive but certainly representative.
Immigration
Trump’s first campaign, in the 2016 election, began with an attack on immigrants from Mexico as murderers and rapists. Those attacks metastasized once he took office. He assailed other immigrants, including not only those from Mexico and Central and South America, but also from predominantly Muslim nations and those that Trump labeled “shithole countries.” He promised to build a border wall for which he would make Mexico pay. Ultimately, only some small sections were built, many over the protests of private citizens who owned land taken for the wall, and American taxpayers, not Mexico, paid, as Trump diverted funds from the military budget for his border boondoggle. All that was based on dividing America, a nation of immigrants (including Trump’s own family and his third wife, Melania, who took advantage of some of the same benefits that Trump has condemned as loopholes when applied to others), and demonizing “the other.”
The current Trump campaign has featured more of the same, with Trump attacking immigrants as “vermin” who are “poisoning the blood of our country.” In fact, Trump and his running mate, J. D. Vance, have doubled down, asserting that immigrants are responsible not only for crime (when in fact immigrants have a lower crime rate than American-born persons), but also for other evils such as housing shortages in certain areas. Trump has proposed to construct concentration camps for illegal or undocumented immigrants, in the service of what he has promised to be the largest deportation effort in American history. Doubtless, persons other than such immigrants will be swept up as well, whether due to the incompetence of those running the deportations, false accusations by persons with an axe to grind, or other factors that will inevitably produce errors in such a large operation.
All that is cynical enough. But Trump reached a new level of cynicism about immigration in the current campaign. Sen. James Lankford (R-OK), one of the most conservative members of the United States Senate, drafted an immigration bill that went a long way toward addressing problems at the southern border. Earlier this year, legislators from both parties expressed support for that bill. So did Harris. But Trump ordered Republicans to reject the bill, because he preferred to continue to run on the border issue rather than allow something to be done about it.
Harris’s service as Vice-President has included efforts on immigration. She famously traveled to Central America and told people there “Do not come.” The flow of immigrants to the southern border has ebbed and flowed during the Biden-Harris administration, as it did during the Trump administration, which featured, among other things, the deliberate separation of immigrant children from their parents. Because the United States is a desirable place for persons from all over the world who seek to live better lives (not a “garbage can,” Trump’s preferred metaphor for the country that those who love it call a “melting pot” or “salad bowl”), the border will likely continue to be an issue no matter who becomes President. Harris supported the Lankford bill, though she might have scored more political points if she had opposed that product of a Senator from the other party. She has promised to seek solutions regarding immigration, not play politics, and to bring people together rather than driving them apart.
The economy
Trump’s campaign regarding the economy has largely consisted of references to how well the economy did during part of his first term. Those years featured tax cuts that largely benefited the wealthiest Americans, including, of course, himself. But that economy was not built to last. When the COVID-19 pandemic hit, the economy tanked.
Trump knew that COVID-19 would be devastating, as he told Bob Woodward in private. But in public he tried to pretend otherwise in order to advance his re-election. At first, he tried to claim that there were not many cases, then said that COVID-19 would go away quickly on its own, and later talked up quack remedies such as ingesting bleach or taking hydroxychloroquine. None of that stanched the economic collapse. The Trump economy was a sugar high that disintegrated when trouble came.
The Biden-Harris administration inherited that abysmal economy. They began to turn around the COVID-19 situation, and the economy along with it, as vaccines developed by private industry became available and the new administration urged Americans to get vaccinated (in contrast to Trump, who after briefly encouraging vaccination was booed for doing so at a rally and thereafter no longer advocated for vaccination, instead saying “You’ve got your freedoms”).
But then Russia invaded Ukraine. That invasion resulted in worldwide inflation. Inflation in the United States, though too high, was lower than that seen by other developed nations. Through the efforts of the Biden-Harris administration and the actions of the Federal Reserve, inflation has come down to near the Fed’s target of 2% annually. And the deep recession that many economists feared never did occur. Instead, unemployment has been at record lows and consumer spending has remained strong. Where the Trump economy fell apart when shocked, the Biden-Harris economy persevered, contrary to many predictions.
Tariffs and taxes have featured prominently in Trump’s term as President and in the current campaign. During his term, Trump proclaimed himself a “tariff man” and imposed significant tariffs. He claimed then, and continues to say now, that tariffs are paid by the foreign countries against whose products tariffs are imposed, when in fact, of course, those costs are passed on to American consumers once those products reach American shores. (And, parenthetically, when tariffs raise the price of foreign goods, American competitors in such goods are able to raise their prices to consumers too).
In the current campaign, Trump has promised to impose even heavier tariffs, some up to 100%. He has suggested that the United States return to the nineteenth-century policy of relying on tariffs to fund, almost solely, the federal government. He has stated that the income tax could thus be repealed. But the federal government during the presidency of William McKinley, which Trump has cited for his idea of tariffs as the basis for funding the federal government, was far smaller in every respect than today’s federal government has been, under Presidents of both parties. It is pure fantasy to believe that tariffs can fund the federal government today.
The Biden-Harris administration has retained some of the tariffs that they inherited in 2021. Others have not been continued. In contrast to Trump’s notion that broad, heavy tariffs are a quick, cost-free fix for whatever may ail the United States economy, Harris would use tariffs selectively, along with other tools, as administrations of both parties have done in the last 100 years. Repealing the income tax is a chimera that Harris would recognize as such.
Foreign policy
Trump’s term as President featured him repeatedly attacking our allies and cozying up to dictators. His repeated threats to withdraw the United States from NATO were apparently forestalled by wiser heads. His “America First” platform in fact amounted to “America alone,” similar to the disastrous isolationist policies of the 1930s “America First” movement. Trump praised Russia’s Putin and took Putin’s word over the informed position of United States intelligence agencies regarding subversive Russian activities. He praised China’s Xi for his handling of the COVID-19 pandemic even while claiming that the disease was a “China virus” let loose on the United States.
Another egregious embrace of a dictator was Trump’s conduct with Kim Jong Un of North Korea. Trump said that he “fell in love” with Kim, and Kim was able to manipulate Trump by allowing him to set foot in North Korea for a second or two (an event that Trump claimed merited a Nobel Prize for himself). Trump, the self-proclaimed master negotiator, accomplished nothing with North Korea and was completely played for a fool by Kim, an adversary less than half Trump’s age.
These patterns have carried over into the current Trump campaign. Trump praised Putin as being “smart” for his unprovoked and unjustified invasion of Ukraine. He spoke approvingly just recently about how Xi rules China “with an iron fist.” On the other hand, Trump continues to be dismissive of NATO, and of Ukraine, whom he has accused of being responsible for its own invasion. And as to Israel, Trump’s primary refrain has been only that Israel is losing the “PR war” in Gaza. Indeed, Trump’s first reaction to the October 7, 2023 Hamas invasion of Israel was to criticize Israel for being unprepared, perhaps out of pique against Israel’s Netanyahu, who had recognized Biden as the winner of the 2020 election.
In contrast, the Biden-Harris administration has recognized that dictators are our adversaries, and that Ukraine deserves support. That administration has been strongly supportive of Israel’s right to defend itself after the October 7 Hamas invasion. And Harris has also expressed concern about civilian casualties in Gaza, expressions that are too much for some given that Hamas uses Gazans as human shields, and not enough for others. Harris can be expected to maintain and strengthen NATO, not undermine it.
Democracy
A hallmark of Trump’s term was his repeated claim that he had unlimited power and that Article II of the Constitution let him do whatever he wanted. Schoolchildren learn that that is not so, as our government has three branches with checks and balances. Trump’s embrace of foreign dictators reflected his own desire to be a dictator.
That desire culminated in his invitation to his supporters to come to Washington on January 6, 2021, not for a peaceful protest of the election that he lost in 2020, but for a day that he intended would “be wild.” The result, of course, was the violent insurrection that sought to prevent the certification by Congress of Biden’s electoral victory, which Trump watched contentedly on television and waited for hours until halfheartedly telling those he had mobilized to go home. Even then, he claimed, and has continued to claim, that the 2020 election was stolen from him, though roughly 60 lawsuits that he and his allies filed in the service of that claim fell flat, procedurally and on the merits. A number of those cases were decided by Trump-appointed judges. Some Trump attorneys in those cases were hit with sanctions for those frivolous filings.
The current Trump campaign has been even more hostile to our democratic political system. Trump has expressly threatened “retribution” against those he perceives to be his enemies. In particular, he has labeled as “the enemy from within,” against whom he would unleash the military, Democrats such as Nancy Pelosi and Adam Schiff. Many of Trump’s worst impulses during his term were curbed by responsible members of his administration or in the courts. If elected this time, Trump would appoint lackeys instead of “adults in the room.” And Trump filled a number of judicial seats with persons who will do his political bidding rather than uphold the law. He has even gone so far as to label as “hostages” the hundreds of people who have pled guilty to or been convicted after trials for their crimes on January 6 (many before judges whom Trump himself appointed), an outrageous insult to the true hostages being held in Gaza.
Harris has conventional views about democracy. She would work within the system, recognizing that the President has broad but not unlimited power, is not a dictator, and cannot always get his or her way. That sort of thing was always taken for granted. Sadly, it is no longer.
Judicial appointments
The next President will be able to nominate jurists at all levels of the federal courts. That number may be fewer than the many judges that Trump and Biden, during their respective terms, nominated, as there are now fewer vacancies and many judges now wait to retire or take senior status until a President of their own party can appoint their replacement. Still, with several Supreme Court Justices having reached advanced ages and seats on lower courts to be filled in whatever numbers, judicial appointments are on the ballot.
Trump nominated and the Senate legitimately confirmed a number of politically conservative judges who have acted conscientiously on the bench, whether one agrees or disagrees with particular rulings. But that is not so of other Trump appointees. Those include district judges who have made blatantly political, legally unsupportable decisions such as banning mifepristone, a drug long approved by the FDA for abortions, declaring unconstitutional qui tam actions, a mechanism to defeat fraud on the government that has existed since the nineteenth century, and rulings in the criminal prosecution of Trump regarding his taking of classified documents. Nine of Trump’s nominees were rated “not qualified” by the American Bar Association, a total that exceeded the combined number of such ratings for nominees in the administrations of the four Presidents, some Republicans and some Democrats, who preceded Trump.
On a different front, some Trump appointees who reject affirmative action in favor of an approach that views every person as an individual rather than a member of a group have announced their intent to discriminate against clerkship applicants because they attended certain law schools with whose philosophies those judges disagree, the antithesis of treating everyone as an individual. Those judges are widely viewed as auditioning for Trump in hopes of being nominated to the Supreme Court if Trump wins election and a vacancy opens on that Court.
Finally, Trump’s three Supreme Court nominees have provided the deciding votes for a number of disturbing, apparently politically-motivated decisions. Trump v. United States, 603 U.S. 593 (2024), announced that Presidents had broad immunity for all sorts of acts while essentially refusing to address the particular facts of that case. West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022), expanded the “major questions doctrine” so as to allow courts routinely to overturn administrative agency actions with which courts disagree as a policy matter. And Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), overruled Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), landmark abortion decisions. At least two of the Trump appointees had told the Senate during their confirmation proceedings that Roe in particular was “settled” or “an important precedent that has been reaffirmed many times [including in Casey, which] specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.” Other examples could be cited as well.
Trump would doubtless fill any Supreme Court vacancy with people who will do his political bidding. Harris likely would not, though her nominees may be somewhat left of center rather than right of center as Trump’s have been. The Biden-Harris judicial nominees, from Justice Ketanji Brown Jackson on down, have been more diverse than nominees of prior Presidents (particularly those of Trump) but have made few, if any, ideologically-based decisions.
A Coda
Biden left this race due to his questions as to his capacities. Even during his term, Trump exhibited signs of derangement. As just one example, recall his 2019 claim that, in the Revolutionary War, the Continental Army “took over the airports,” which of course did not exist. More recently, Trump has focused on Arnold Palmer’s penis size, whether magnets work underwater, the fictional character Hannibal Lecter, the fanciful notion that Lincoln could have negotiated to avoid the Civil War, and much, much more. Readers can judge for themselves whether Trump is mentally capable of being President again. Harris, though imperfect, appears sane.
This post came too late to reach voters who voted early. But persons who will vote in person tomorrow should consider the choices carefully. Neither candidate is ideal, as indeed no candidate for President has been or ever will be. But the choice between Harris and Trump is critical, and a vote for any other candidate is a wasted vote that may help ensure the election of the less desirable major party candidate in the eyes of the third-party voter.
Now go and vote! And may God bless America!