Let’s Be Careful Not to Box in President-Elect Trump—How to Build Exit Ramps

The ACLU has published a full-page open letter in the New York Times to President-elect Trump—a show of force of the significant legal power of the organization. Forgive that somewhat violent metaphor, but the ACLU itself informs Mr. Trump that his administration will have to deal with “the full firepower” of the organization and that it stands “ready to fight.” That language makes perfect sense on its own, and indeed is required by an organization that will likely be a most vital player in preserving our constitutional rights and freedoms over the next four years. But, the language here accentuates one concern I have with a premise of the ACLU letter. The letter states that Mr. Trump has promised certain extreme policies, and demands he back down from them now. My concern: Mr. Trump and his team already softened or rescinded some of those most extreme positions in the campaign; it is those modified versions that he proposed to the electorate before the vote; and the electorate itself expressed (in exit polls – see my analysis here) that it too rejected the extreme policies.

Isn’t that narrative better (and more accurate) than one that suggests that Mr. Trump enters office with the earlier extreme measures as campaign promises?  What’s more, due to his temperament, demanding the President-elect disavow something might make him redouble his efforts to reverse course—in the other direction. And, given the people he has surrounded himself with, more than one must be whispering in his ear that a poor tactical move is to be seen to modify in the face of threats of such litigation. Don’t get me wrong: those risks might be worth running if we are talking about statements that Trump never disavowed. And we should not let down our guard or draw attention away from the looming threat of those policies, which the ACLU also identifies.

But when Mr. Trump has already stepped away from an extreme policy, it may be a better course to bring attention to that fact to help entrench it, and perhaps champion it in a way that Trump and his team feel the benefits of taking such steps rather than losing face for having done so.

Here’s part of what the ACLU states in its letter on Saturday:

We must ask you now as president-elect to reconsider and change course on certain campaign promises you have made.
Specifically:
amass a deportation force to remove 11 million undocumented immigrants
ban the entry of Muslims …

Here’s some of what I wrote on Friday:

Second, let’s remember that Trump and his team narrowed, rescinded, and disavowed some of his most extreme positions—including the Muslim ban. And on mass deportation, in October, the NY Times noted that “Mr. Trump recently softened his position on immigration, forgoing his calls for mass deportation in favor of a focus on ‘criminal aliens.’” Third, it is important to keep the second point in mind as progressive groups publicize the harshest policies Trump espoused earlier in the campaign in an effort to rally support for their causes and as far right groups publicize the same in an effort to pressure the Trump administration to follow through on those earlier statements.

Image:A lion tamer at Bertram Mills Touring Circus, Ascot, National Media Museum from UK, via Wikimedia Commons

  

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.