The Next Four Years: A Thanksgiving Strategy

Night falls over the White House at dusk, Monday, Nov. 24, 2014, in Washington. (AP Photo/Jacquelyn Martin)

On this Thanksgiving Day, like many gathered around dining tables everywhere, I have so much to be thankful for personally: the most wonderful family and friends imaginable, and a lucky, enviable life that my parents emigrated to give and urged me to live.

But it is hard to give thanks for the recent presidential election, which was both an unwelcome surprise and a bitter disappointment.  Like most of you, I am still absorbing the lessons.  Still, here is what I’m thankful for.

First, that we have a leader of the quality of Hillary Clinton.  I look forward to the day very soon when we can finally realize our collective aspiration to see a Madame President leading this great country.

Second, in the two weeks since the polls closed, I have been startled and relieved—I won’t say “thankful”—that the President-Elect apparently made so many dire campaign promises to which he now seems to have little real commitment. It is hard to give thanks that someone who aspired to lead the greatest country in the world seems so willfully ignorant of the details of important public issues. When recently asked by the New York Times whether he would actually take the radical steps he repeatedly promised—such as ending Obamacare, bringing back torture, and “canceling” a Paris climate change agreement that has already entered into force, Trump said “I’ll take a look”—as if he now understood that the world actually takes our President’s words seriously. But if that realization has finally dawned on our new leader, let me be thankful for that too.

Third, having worked in three administrations, Republican and Democrat, my greatest comfort today comes from the fact that the American government is much bigger than one person (or even the several thousand he may appoint). The U.S. government does not turn on a dime, or instantly dance to the tune of its latest elected leader. In times when we might want progressive change, that is maddening; but at times when we are resisting dramatic change for the worse, that is reassuring. The fact that a coalition government of Trumpites and conservative Republicans now controls all three branches of the federal government does not automatically mean that critical policies will change radically and immediately on Day One.

I am thankful that America’s observance of law, international and constitutional, is preserved not just by our political branches, but by a transnational civil society that includes diverse stakeholders that those elected on November 8 don’t control: among them, (1) the courts; (2) states and localities; (3) nongovernmental organizations; (4) formal and informal media; (5) our allies and international organizations; and (6) a robust federal bureaucracy that has seen many political leaders come and go.  Indeed, this may be the first time that this country elected a leader that such an overwhelming percentage, if not nearly every employee, of the State Department, the Environmental Protection Agency, the Departments of Justice and the Interior, and the Department of Health and Human Services voted against. They are used to saying “Yes, Minister.” So a highly public top-down transition process of the kind that we are witnessing at Trump Tower does not guarantee that the bureaucrats will carry out what their new political masters say.

Finally, I am thankful that every single U.S. government official, high or low, takes a solemn oath not to obey any particular President, but to uphold the Constitution and laws of the United States of America, including the “international law that is part of our law.” I have long argued that a pervasive transnational legal process internalizes international norms into all of our national institutions, public and private. That “bureaucratic stickiness” will create default paths of greater resistance that the new Administration will have to negotiate in every policy area, mindful of its weak coalition, minority electoral support, and limited political capital. The President-Elect has already signaled that when he encounters enough resistance, to preserve his scarce capital, he may act like the politician that he has inevitably become, decide to revise his positions, and move to the middle.

That is the strategy the loyal opposition must follow these next four years: use all of the available tools enumerated above—the courts, subnational entities, media, civil society, transnational alliances and bureaucratic stickiness—to hold our leaders accountable. As patriots, we serve our country, and the republic for which it stands, by contesting elections—as many of us have just admirably done. If we lose, as one side must, we may demand lawful answers from those who govern. On this Thanksgiving Day, I will give thanks for many things, but most of all that I live in a country whose residents have so many ways to demand fidelity to the rule of law that our new President will swear to “preserve, protect and defend” next January.

 

Image: AP Photo/Jacquelyn Martin – Night falls over the White House at dusk, Nov. 24, 2014 

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About the Author(s)

Harold Hongju Koh

Sterling Professor of International Law, Yale Law School; Legal Adviser, U.S. Department of State (2009-13), Assistant U.S. Secretary of State for Democracy, Human Rights and Labor (1998-2001)