A quick note on how ‘unilateralism’ works domestically
If you look up the word ‘unilateralism’, you would see it defined as “the process of acting, reaching a decision, or espousing a principle unilaterally.” And we often hear of the US choosing to act using unilateralism or multilateralism on the world stage. But, a US executive can also act unilaterally domestically too. And I believe this is Donald Trump’s intention as President.
This is going to be a short post. But let me back up for a second and explain where this is coming from. On Monday, I outlined how Trump campaigned and has governed as the ‘anti-Obama’. And the essence of this anti-Obama-ness is in choosing a unilateral approach much more frequently.
To be fair, Obama, like many US Presidents, did often act unilaterally. He signed a number of executive orders. And his signature legislative achievement of healthcare reform was essentially a unilaterally Democratic piece of legislation. But, Trump wants to create a perception of himself as more decisive and less conciliatory than Obama. And that, by definition, means acting unilaterally.
We know what that looks like on the world stage, with the US pulling out of the Paris Agreement on climate change, and on tariffs against the Chinese and so forth. But, what would that mean domestically then? I would argue that it looks like a potential executive order to exclude illegal immigrants from birthright citizenship.
Now, the 14th Amendment to the US Constitution reads “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” That’s birthright citizenship. And presumably “subject to the jurisdiction thereof” includes the children of US citizens, legal permanent residents of the US, and temporary legal residents on H1-B visas, and even tourists. It should certainly include illegal immigrants, then, too.
But, unilateralism domestically means disregarding that possibility. The goal is to sign whatever executive order or pass whatever legislation one can, and, then, force opponents of those moves to make the courts to decide whether the legislation or executive order is constitutional. As with unilateralism in foreign affairs, it puts the onus on the other side to react. It’s an aggressive, power move. But, the rationale is that by doing whatever you can and only conceding ground when forced to do so, you can get more wins. The ‘enemy’, so to speak, won’t be able to block all of your moves.
The Muslim travel ban is a perfect example here. The original ban didn’t work because the courts rejected it. But Trump went back to the drawing table and drafted an executive order that met the objections of the Supreme Court to the first travel ban. And this worked. In June, the Supreme Court upheld the travel ban in a 5-to-4 vote.
With Kavanaugh replacing Kennedy on the Supreme Court, Chief Justice Roberts effectively becomes the swing vote in these decisions. And I reckon Trump will like his odds more now than he did before Kavanaugh rose to the Supreme Court. So, it makes sense we will see an executive order barring illegal immigrants’ children from being able to obtain US citizenship. Axios revealed yesterday that Trump is looking into this.
My assumption, though, is that Trump will feel emboldened to take unilateral acts domestically as long as Congress is in Republican hands. So, if the midterm election goes against him and the Democrats take the house, we should expect the President to sign this executive order before the next Congress takes its seat in January 2019. Then, it will be up for the courts to decide if the executive order is constitutional.
On the other hand, maybe I’m wrong. Perhaps, it’s more that, if Trump face a Democratic House of Representatives, he actually may decide to resort to more executive orders as a form of unilateralism to keep Congress from stymieing his agenda.
Either way, my expectation continues to be a more bold and unilateral Trump going forward in 2019 and 2020 than we saw in 2017.