Post-Election Q&A: Stanford Law School Faculty Weigh-In on the Election of Donald Trump

Stanford Law School faculty weigh-in on key legal issues after the election of Donald Trump—looking at the Supreme Court, the Voting Rights Act, executive power, race and birtherism, the Affordable Care Act, reproductive rights, marriage equality, the electoral college, poverty law, the Rust Belt vote, the future of Dodd Frank, corporate governance, gun control, and climate change:

Voting Rights Act, Voting Infrastructure in the U.S, and a New Supreme Court

Constitutional Conversation with Nate Persily
Professor Nathaniel Persily

Law of Democracy Scholar and Voting Rights Expert Nathaniel Persily, James B. McClatchy Professor of Law, on the Voting Rights Act, Voting Infrastructure in the U.S, and changes at the Supreme Court.

For the first time since its enactment, key parts of the Voting Rights Act were not in force for this election. Did it have an impact on voter turnout?    If yes, how and where was the impact greatest?

We do not yet know the impact of any legal change on turnout, either in the aggregate or in individual states.  The provision of the VRA that the Court struck down in Shelby County v. Holder did not apply nationally, so if we were to see an effect we would expect to see it especially in places like North Carolina, which is a state that passed many restrictive voting laws once it was not bound by the VRA.  As far as I can tell, the drop off in turnout among racial minorities– which is a very important factor in who won—occurred across the country, not just in areas previously covered under the VRA.  That said, over the next year we will also get a better handle on how legal changes in general – such as voter identification laws and contraction of early voting periods – affected voting in 2016.  As of the few days following the election, they do not appear to have had a major impact, but perhaps later analysis will show some effect.

There was a recent report that ranked democracies around the world and their systems of voting. The United States was far down the list—I think number 25. What can be done to improve our system of voting?

The voting infrastructure – which is to say, the actual machinery of casting and counting ballots – seemed to perform pretty well in this election.  There were unacceptably long lines in some places, but it appears that the problem was not as pronounced as it was in 2012.  (No doubt, lower turnout makes an election easier to manage.) Concerns about foreign hacking of the election machinery appear to have been unfounded – although many vulnerabilities in the voter registration system became apparent.

Of course, the United States’ electoral system remains an anomaly in many ways.  We require people to re-register to vote every time they change residences.  We do not have a national identification card, so voter identification laws may have a disparate effect on racial minorities and other groups of voters.  Although we have made great progress in expanding early voting, many states continue to have voting only on a Tuesday.  And of course, when it comes to how we elect our President, the Electoral College is an institution no other country has come close to replicating.

What issues are most likely to be effected at the Supreme Court in a Trump presidency?

If Donald Trump is able to replace not only Justice Scalia, but also one of the more liberal leaning Justices then many areas of constitutional law may be transformed.  The two most obvious would be the jurisprudence surrounding abortion and affirmative action.  Two picks to the Supreme Court might be sufficient to overturn Roe v. Wade, and therefore a woman’s right to choose to have an abortion.  Another case, Grutter v. Bollinger, which upheld some types of affirmative action in university admissions, could also be overturned.  Beyond that, we also might expect several areas of law dealing with federal power to change.  For example, the Supreme Court’s decision upholding the Affordable Care Act was a five to four vote, that might have gone the other way if one of Trump’s picks had sat in the seat of one of the more liberal Justices.  The same might be said for marriage equality – Obergefell v. Hodges was another 5-4 decision – that likely would have gone the other way.

Are there any important factors at play that could affect the topics and issues the Supreme Court decides to focus on in the future no matter what president is leading the country? What are they?

The Supreme Court only hears cases that percolate through the lower courts.  It is a responsive institution.  However, given what appears to be Trump’s views on executive power and what he has promised to do in several policy areas, the Court may be drawn into several constitutional controversies quite quickly.   It remains to be seen how much policy making he hopes to do independently of Congress – or whether he will even need to given that Republicans also control the House and Senate.

What are other considerations that people should think about when it comes to law interpretation during Trump’s presidency?

The courts and the Supreme Court are not the only officials in government who interpret law.  Of equal or perhaps greater importance in the short term will be the officials who run the Department of Justice.  The advice they give the President and their directions to his new appointees throughout the federal bureaucracy will have profound implications for setting the legal bounds for his exercise of power and implementation of his policies.

Race and the Election of Donald Trump

Richard Thompson Ford
Professor Richard Thompson Ford

Civil Rights and Antidiscrimination Law Expert Richard Thompson Ford, George E. Osborne Professor of Law, on Race and the Election of Donald Trump:

We heard about attempts by local and state governments to suppress voter turnout by limiting early voting, and by cutting back on the number of polling stations. Do you think this contributed to the smaller than anticipated turnout of the Black vote?

Sadly, Republicans, at the state level in particular, have long tried to discourage minority voting.  And it was effective at the margins— some voters faced with fewer polling places and long lines gave up and went home; some were intimidated by “poll watching” thugs; some were put off by dishonest signs or polling officials demanding qualifications that are not lawfully required.  Since elections are won at the margins, it is fair to say that these tactics may well have given Trump the Presidency.  This, combined with the judicial gutting of the Voting Rights Act, the mockery of democracy that is the Electoral College (it may well be that Hillary Clinton— like Al Gore– won the popular vote, but remarkably that doesn’t matter in our political system) and, of course the closed clubs of the political parties that gave us a choice between the two most disliked candidates in modern history make it pretty hard to credit Trump as the choice of the people.

President elect Donald Trump led the “birther” charge against President Obama. Do you want to comment on what this election says about racism in the United States?

The “birther” nonsense demonstrates that racism is still a potent force in American politics and how racism is increasingly xenophobic in character, as opposed to the largely anti-black racism of the recent past.  What’s new is that. unlike, say, the dog whistle racism of Ronald Reagan’s attacks on “welfare queens” or George Bush’s Willie Horton advertisements, (or to a lesser degree, Bill Clinton’s Sister Soulja moment) Trump’s racism was overt and was not by and large anti-black (though that was there too in the law and order rhetoric) but, reflecting our current unrest, it was anti-Muslim and anti-Latino.

To be clear, I don’t want to suggest that all Trump supporters are racists.  Trump voters are a mix of people fed up with the political establishment—for good reasons and bad—and bigots and sexists who want to return to an era of explicit white male supremacy.   The “fed up” voters express legitimate anger at politicians—Republicans and Democrats—who have allowed the middle class to shrink, wages to drop and working conditions to worsen—the same kind of populism that fueled Bernie Sanders’ campaign.  But then there are also those who feel less well-off—both economically and in terms of their social status—because they can no longer rely on race and sex privilege.  It’s a big mistake to write off Trump supporters as nothing but racists, sexists and xenophobes— dismissing the legitimate frustration of people who are really suffering under globalization and a high tech economy may have cost Clinton the election—but of course it is also a big mistake to deny the bigotry that fueled Trump’s campaign.

Executive Power, the Supreme Court, and the Electoral College

Michael W. McConnell
Professor Michael W. McConnell

Constitutional Law Scholar Michael W. McConnell, Richard and Frances Mallery Professor of Law and Director of the Constitutional Law Center, on Executive Power, the Supreme Court, and the Electoral College:

You’ve written about the expansion of executive power by both Presidents Bush and Obama. What are your concerns going into this new administration?

One of the best things about a Trump presidency is that checks and balances will be reinvigorated. Under President Obama, an adoring press and a supportive congressional party looked the other way, or even actively celebrated, expansions of unilateral power that under other presidents would be seen as overreach. Trump will not have that kind of insulation. He will face an adversarial press, a judiciary that leans heavily to the opposition, an uncooperative bureaucracy, and a Congress made up of Democratic opponents and a large cadre of mainstream Republican skeptics.

The current Congress refused to take up debate on President Obama’s nominee to the Supreme Court.  Is that debate an absolute requirement? Is there a way for Obama to circumvent Congressional consultation?

The Senate is free to confirm or not confirm nominees. Whether to debate a nominee is up to the Senate. I doubt there is anything President Obama can do to circumvent the Senate in this regard. In theory, he can make recess appointments (even to the Supreme Court) but only when the Senate is in recess. I doubt the Senate will give him the opportunity.

Once again it appears that a presidential candidate has won the popular vote yet lost the electoral college count. What was the rationale for establishing the electoral college —and is it still necessary?

None of the original reasons for the electoral college remain valid, but it is highly unlikely that two thirds of both houses of Congress and three quarters of the states will vote to amend the Constitution to bring about a popular vote. The main effect of the electoral college is to guarantee that, to win, a candidate has to have support among a large number of states rather than simply amassing huge super-majorities in a few large states.

Religious Liberty and the Muslim Community

Shirin Sinnar 1
Professor Shirin Sinnar

National Security and Civil Rights and the Law Expert Shirin Sinnar, Associate Professor of Law and John A. Wilson Faculty Scholar, on Religious Liberty and the Muslim Community:

 Trump proposed a total ban on Muslim immigration at the beginning of his campaign. What does his election say about religious liberty in the U.S.?

Donald Trump’s election means that there may be tough times ahead for racial and religious minorities in the United States, including Muslims.  He may not seek to implement the notorious “Muslim ban” he advocated, both because of legal obstacles and because he has already proposed alternative measures.  The problem is that his “alternatives” are deeply problematic: the “extreme vetting” policy he has offered as a replacement, for instance, would impose narrow ideological litmus tests and appears designed to target Muslims.  Moreover, if his campaign rhetoric is any guide to what he will do, then we can expect even more aggressive policing and surveillance of American Muslim communities as well—not just new immigrants.

Trump’s election may also instigate private acts of discrimination and hate violence against racial and religious minorities—as his campaign already has.  The election of a president who shamelessly campaigned on bigotry may embolden private individuals who seek to subordinate and exclude Muslims, Latinos, immigrants, and others.  As in the past, discriminatory public policies and hateful speech from above can license private prejudice and discrimination from below.

How do you think this election is being perceived around the world by Muslim people?

For many Muslims throughout the world, Donald Trump’s advocacy of a ban on Muslim immigration last December put him on the map as a bigot.  Muslims abroad are asking on social media whether he will put in place that ban.  But reflections on Trump’s victory go beyond the question of what policies he may adopt.  The broader message from the election is that the American people chose Trump – despite or even because of his bigotry.  In fact, some Islamic militants are celebrating Trump’s victory as a vindication of their claim that Americans hate Muslims and that the United States is engaged in a war against Islam.

Potential Re-Negotiation of International Agreements

Allen S. Weiner 1
Professor Allen Weiner

International Legal Scholar Allen Weiner, Senior Lecturer in Law and Director of the Stanford Program in International and Comparative Law, on the Potential Re-Negotiation of International Agreements :

President elect Trump has threatened to nullify many of President Obama’s international agreements from the Iran Deal to the Paris Climate Agreement to the yet to be signed TPP. What do you think that will do to the American government’s ability to negotiate international agreements?

There are both legal and policy issues presented by the potential withdrawal from international agreements.  As a legal matter, international law is largely a consent-based system, and states are typically bound only by those legal obligations that they accept.  Treaties like the Paris Agreement on Climate Change also typically include provisions enabling states that have accepted the treaty to withdraw from it after a reasonable notice period.  The Iran nuclear agreement (the Joint Comprehensive Plan of Action) provides the parties with even more flexibility—it is not formally a legal binding agreement.  So the parties to the Iran agreement are technically free to decide to stop implementing it.

But just because a country has the legal authority to withdraw from international agreements does not mean it is a good idea to do so.  That’s where broader foreign policy considerations arise.  The flexibility that international law offers is reciprocal—what’s good for the goose is good for the gander.  That’s why states usually engage in solemn deliberations before deciding to enter into international agreements, but once they have done so, rarely withdraw from them.  The impact of precipitous withdrawal from our international commitments could have foreign policy implications going well beyond the agreements in question.  We risk losing the benefits of international cooperation in a host of other areas if countries become reluctant to enter into international agreements with the United States, for fear that our commitment to those agreements will vary with the vicissitudes of domestic U.S. politics. Moreover, if America sets the precedent of freely withdrawing from its international commitments, other countries may follow suit; we may see other countries withdrawing from agreements that are beneficial to the United States.

Law and Undocumented Immigrants

Jayashri Srikantiah
Professor Jayashri Srikantiah

Immigration Law Expert Jayashri Srikantiah, Professor of Law and Director of the Immigrants’ Rights Clinic, on the Law and Undocumented Immigrants:

President-elect Trump made anti-immigration a key platform of his campaign. He wants to deport all undocumented immigrants. Is that possible—or even feasible?

 Approximately 11 million people live in the United States without immigration papers. Studies estimate that over half have lived here for more than five years, and many have U.S. citizen and lawfully present children and spouses. Any plan that targets these 11 million individuals for deportation would tear apart families and disrupt large sectors of the economy—like the agricultural sector—that rely heavily on undocumented workers in their labor force.

We should ask whether such a harsh deportation plan is necessary, even if president-elect Trump’s goal is to stem undocumented migration to our country. Unlawful border crossings have fallen to their lowest levels since the 1970s, and deportations under President Obama’s administration have moved at a brisk clip, peaking at 400,000 annually a few years back.

Trump’s mass deportation proposal is prohibitively expensive and largely unfeasible. To initiate the deportation of 11 million people, Congress would be required to approve the expenditure of billions of dollars to expand the immigration enforcement operations of the U.S. Department of Homeland Security. And the deportations would place a heavy—if not impossible—burden on our nation’s already overwhelmed immigration courts. This is because undocumented individuals are entitled to a hearing before an immigration judge to determine if they have claims to stay in the U.S.

Any plan for mass deportation of the 11 million undocumented individuals living in this country is unrealistic, fiscally irresponsible, and inhumane.

Plight of Rust Belt and Rural American Workers

Public Law Scholar Michelle Wilde Anderson, Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research, on the Plight of Rust Belt and Rural American Workers:

Michelle Wilde Anderson
Professor Michelle Wilde Anderson

What do you think needs to be done to get Rust Belt and post-coal, post-tech rural communities back on their feet—what is your advice for the new president?

I’m writing a whole book on this subject, so I have a lot to say on this score.  But for now, I would highlight a few things.  We need better public services in places—whether they are urban, suburban, or rural—that are too poor to pay for them or buy private alternatives.  Above all, that has to mean better education in advanced manufacturing and the STEM fields, as well as trusted policing and emergency response.  We also need an infrastructure agenda for all historic places in the country to restore our basic water, wastewater, transportation, and communications systems.  We need to keep these regions safe, healthy, and competitive even where they are poor.

Candidate Trump tapped into the hardships of the working class in an ever more global and technologically efficient economy. Can his policies, or what we know of them, help them?

The sad truth is that the hardships for the fragile American middle class, including those in the Rustbelt, are poised to get worse before they get better.  Technological advances position us on the cusp of automating huge additional segments of our middle-class workplace.  Robotic substitutes for many remaining bedrocks of reasonably-paid but low-skilled jobs are transitioning from prototypes to products.  Truck, bus, and other automobile driving; warehouse and logistics; and food service work—jobs held by a racial rainbow of Americans—are all poised to take a new body blow.  That is why Silicon Valley, whose laboratories are leading new waves of automation, has buzzed with talk about a minimum basic income that can keep people fed and sheltered even if they are not employed.  Right now, with an unemployment rate of only about 5% and a stiffly anti-entitlements coalition in place across the federal government, the MBI conversation will be a purely hypothetical one.

During the campaign and on election night, I was heartened to hear Trump’s references to infrastructure improvements, which are sorely needed in the Rustbelt.  Poor areas in those states have old systems for sanitation and transportation that are long overdue for investment, but they lack the accelerated population growth that an old but thriving city (like San Francisco) can use to finance infrastructure overhauls.  Unfortunately, Trump’s team has issued an agenda on this issue that leaves me in doubt about both efficacy and fairness.  The roadmap of his infrastructure plans suggests paying for them without new public revenues (in other words, to rely solely on private financing).  This sounds terrific, but it will pass higher costs onto consumers, because private businesses must pay higher interest rates than governments, and they will structure fees to make a profit.  That’s why the programs already in place for this are neither effective nor widely used.  A self-funding, privatized model might mean that a few busy airports or bridges see some improvements (though we won’t like the higher user fees, and they will fall hardest on the working poor).  But it simply cannot meet the needs of poor areas where private capital cannot turn a profit.  I would love to hear that I am wrong, and see Trump rise to the occasion of delivering on progress in our flagging post-industrial regions.

The Supreme Court, Reproductive Rights, and Marriage Equality

Professor Jane S. Schacter

Constitutional Law and Sexual Orientation Law Expert Jane S. Schacter, the William Nelson Cromwell Professor of Law, on the Supreme Court, Reproductive Rights, and Marriage Equality:

Can we assume that a president Trump will nominate not just a conservative Supreme Court justice, but one who will be sympathetic to right to life causes?

If the new President appoints from the two lists of candidates he has previously published, we can assume the person is likely to be skeptical about rights not clearly enumerated in the text of the constitution. This would likely include abortion rights to some degree, but history suggests that it can be perilous to try to predict how specific candidates will vote on specific issues.

Do you have any concerns regarding abortion and reproductive rights in a Trump presidency?

So much turns on how many vacancies there are on the Supreme Court. The replacement of Justice Scalia will presumably restore the Court’s ideological balance to where it was before his death. Recent rulings on abortion regulation are unlikely to change unless Justices Ginsburg, Breyer or Kennedy step down.  Last term, there was a landmark holding in the Whole Woman’s Health case, which struck down some state restrictions on access to abortion and signaled the Court’s willingness to take a closer at abortion regulation so as to ensure that states have a valid reason to regulate, rather than simply having created more obstacles to abortion access. That decision had the support of five justices (Kennedy, Ginsburg, Breyer, Sotomayor and Kagan), so it is unlikely to be displaced in the near term. But further vacancies could change the approach set out in Whole Woman’s Health and give states wide latitude to functionally restrict access to abortion, even if a limited version of Roe v. Wade remains on the books.

Could marriage equality be undone?

Not in the short term. Once again, unless there is an additional vacancy, there will remain 5 votes in support of marriage equality.  Even if another vacancy opens up and a state or Congress takes legislative action against marriage equality to try to get the Supreme Court to take another look at the issue, there will be substantial questions about whether a majority on the Court would be willing to ignore the doctrine of precedent and overrule a recent major ruling. But we may well see such a challenge if there is a second vacancy for the new President to fill.

The Affordable Care Act

Empirical Health Law and Policy Scholars David M. Studdert, Professor of Medicine (PCOR/CHP) and Professor of Law, and Michelle Mello, Professor of Law and Professor of Health Research and Policy (School of Medicine), on the Affordable Care Act:

Small share of physicians account for bulk of malpractice claims
Professors David Studdert and Michelle Mello

President-elect Trump has said he’ll ask Congress to repeal Obamacare on his first day of office. Now that the U.S. has elected both a Republican Congress and Republican President-Elect Trump, what is likely to happen with the ACA?

Exactly what will happen is unclear at this point, particularly since President-Elect Trump’s own position on the ACA seems to be evolving by the day.  In an interview on November 11, he said he is interested in keeping some of the key provisions of the law, such as bans on insurers discriminating on the basis of pre-existing conditions and provisions allowing young people to stay on their parents’ plan until age 26. But his opposition to other provisions, including the cornerstone provision requiring individuals to purchase insurance coverage, likely will remain. At this point, about the only thing one can say with certainty is that substantial change is coming.

Is it likely to be repealed fully or will some parts be spared? If the latter, which parts?

On the campaign trail, President-Elect Trump has said repeatedly that repealing Obamacare is a priority.  House Republicans have said the same, and their legislative attempts to date to undo features of the ACA have been blocked by President Obama.  A complete repeal seems unlikely in the short term, though. One issue is that there’s more opposition among Republicans and the President-Elect to some provisions of the 2,700 page Act than to others. Another is that millions of Americans now depend on health insurance coverage made available through the ACA, so simply yanking it presents a political problem.

More likely, Republicans will target certain key elements – the individual mandate, minimum essential coverage rules, the subsidies available to low-income purchasers of health insurance, and federal financing arrangements for the Medicaid program.  Eliminating all of these features would spell the end of Obamacare as we know it.  Eliminating any one of them would seriously threaten the viability of some of the remaining reforms, because the ACA’s strategy depends on having all major legs of the stool in place.  For example, banning insurance discrimination without requiring healthy people to buy insurance is known to result in “adverse selection,” in which prices spiral because only sicker people have an incentive to buy insurance.

What is the legal process for repeal? What are the issues likely to arise from this process?

Although Republicans will have a majority in the House and Senate, they fall just short of a filibuster-proof majority (60 votes) in the Senate.  This is why a repeal is not likely to occur, at least not straight away, unless several Senate Democrats break ranks in the vote.  A more likely scenario is that Republicans will use the budget reconciliation process to make the kind of changes mentioned above.  (Bills of this kind require only simple 51-vote majority in the Senate, which they have.)

How will this affect Americans currently receiving subsidies for health insurance?

Elimination of the subsidies would have a major effect on the ACA’s core objective to cover the uninsured.  In 2017, about 25 million people will purchase their health insurance on the exchanges set up under the ACA, and about ¾ of these 25 million people will receive subsidies to help make premiums affordable.  If the subsidies disappear, we should expect that health insurance will become unaffordable for many of these people, or no longer look like a good deal.  The tax credits and health savings accounts currently being discussed won’t make up for what is lost, and many people who currently have insurance can be expected to drop it. Elimination of the individual mandate will further open the way for this to happen.

What effect might a repeal have on healthcare providers and patients across the country?

What the effect will be depends on what the President-Elect’s proposal to “repeal and replace with something terrific” ends up looking like, which is far from clear at this point. There will likely be some alternative policy for making insurance coverage more accessible than it was prior to Obamacare, but the scheme will have a much smaller governmental footprint. For example, the current subsidies that make insurance more affordable for low-income Americans could be replaced with tax credits and health savings accounts; and barebones plans offering thinner coverage than the “minimum essential benefits package” allowed under Obamacare could be permitted. Medicaid eligibility is also likely to be rolled back.

None of this will happen on day one; change will take time—perhaps as much as a year or two—to work its way through Congress. But the outlook isn’t sunny for the tens of millions of Americans who have gained access to affordable coverage because of the ACA, or the health plans who cover them.

One of the questions providers have is whether the ACA’s value-based reimbursement programs will continue. The President-Elect hasn’t taken a position on these initiatives. They’re not at odds with Republican values, but like many areas of the new administration’s health agenda, it’s a question mark at this point.

What are the broader health implications?

It is difficult to answer this question without knowing what President-Elect Trump and the Republican Congress will put in place of an eviscerated ACA.  We are pessimistic.  Not surprisingly, a ream of research studies link health insurance coverage with improved access to care and better health. Retrenchment will have a human toll.

The Future of Dodd Frank, Financial Regulation, and Corporate Governance

Corporate Governance, Capital Markets, and Securities Regulation Litigation Expert Joseph A. Grundfest, W. A. Franke Professor of Law and Business and Senior Faculty, Rock Center for Corporate Governance, on the Future of Dodd Frank, Financial Regulation, and Corporate Governance:

Candidate Trump spoke of repealing Dodd Frank and bringing back Glass-Steagall.  How likely do you think that is? And how might it play out?

Stanford Law School and Sullivan & Cromwell Launch Foreign Corrupt Practices Act Clearinghouse
Professor Joseph Grundfest
The first few days of the Trump Administration’s transition planning suggests that Trump’s election promises are “fluid”, and that his views will, in some areas, be tempered by Congressional preferences. Trump’s campaign positions on financial regulation were largely limited to call to repeal Dodd Frank and to reinstate the Glass Steagall Act. But as we’ve already seen, despite his calls to repeal Obamacare, Trump now intends to keep material portions of that health insurance plan, and don’t be surprised if he addresses Dodd Frank and his Glass Steagall position in the same manner.
In particular, rather than entirely gutting the Dodd Frank Act, the Trump Administration could decide to adopt the approach recommended by Representative Hensarling in the CHOICE Act.
In a nutshell, that bill would allow financial institutions to opt out of certain provisions of Dodd Frank and of Basel III if they maintain sufficient capital. It would also place additional restrictions on the government’s ability to designate financial institutions as Systemically Important Financial Institutions, amend the bankruptcy code to create new mechanisms for dealing with the failure of major banking institutions, restrict the ability of the federal government to bail out financial institutions, and restructure the Consumer Financial Protection Bureau. And those are just the headlines.
By adopting a detailed piece of legislation that is already on the table and that has significant support within the Republican caucus, Trump would avoid the need to begin with a clean sheet of paper and would be able to claim a rapid “deregulatory victory.” This approach would also be consistent with the Trump Administration’s recognition that it can’t really gut all of Obamacare and that it will have to, and want to, keep material portions of that legislation in force.
On the SEC front, several additional predictions are also quite straightforward. The suggestion that the SEC should adopt rules that would require publicly traded corporations to disclose their political contributions is dead, dead, dead, dead, dead. Proposed additional climate change disclosures will also go nowhere. Congress may also repeal the conflict mineral disclosures, the pay ratio disclosure rules (which require that companies disclose CEO compensation as a multiple of median employee compensation), and the extraction mineral rules. Even if there is no legislation in that direction, you can expect that the new Republican majority at the Commission will act quickly to reduce the perceived regulatory burden imposed by those rules and others. Less clear is whether the Commission will continue with an initiative to require greater disclosure regarding boardroom diversity and steps that boards are taking to promote diversity, but the odds are also against adoption of these proposals.

How might corporate governance change in a Trump presidency?

On the corporate governance front, we can expect to see major reform of the shareholder proposal process. I wouldn’t be surprised to see either a significant increase in the thresholds required for shareholder proposals and a narrowing of the subject matter that can be properly introduced or, more dramatically, a devolution of authority over shareholder proposals to the states. Under the devolution regime, which has been advocated by former Commissioner Dan Gallagher, the SEC would get out of the business of writing rules governing shareholder proposals and leave those matters to each corporation’s chartering state. The legal rationale here is simple: state law governs the operation of the shareholder meeting and defines proper subject matter for shareholder action, so why should the federal government be intruding in an area of law that is predominantly controlled by state law? That form of a “state’s rights” philosophy would also be consistent with Trump’s views regarding Roe v. Wade, where he suggests that regulation of reproductive rights be left to the individual states, and would, I suspect, be consistent with a larger regulatory theme we can expect to see in this new administration.

Gun Control and the Supreme Court

Empirical Law and Policy Scholar John J. Donohue, C. Wendell and Edith M. Carlsmith Professor of Law, on Gun Control and a New Supreme Court in a Trump Presidency:

John Donohue 1
Professor John J. Donohue

Can we assume that a president Trump will nominate not just a conservative Supreme Court justice, but one that will take gun rights to a new level?

One of the most remarkable transitions in the Republican Party over the last 35 years is that it went from a party that favored gun control to a party that has adopted an extreme position on gun rights. Thus, former Chief Justice Warren Burger expressed the view of many Republicans back in 1991 when he said that the Second Amendment “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.” Ronald Reagan was also a strong advocate for gun control during his time as California governor and even more strongly after he was shot.

Even Donald Trump, in his 2000 book “The America We Deserve,” specifically stated that he supported the 1994 federal assault weapons ban (which expired in 2004 and was not renewed by Congress). He also stated then that he supported a “slightly longer waiting period to purchase a gun. With today’s internet technology we should be able to tell within 72 hours if a potential gun owner has a record.”

But overzealous support for the Second Amendment has become a defining identity trait of most Republican politicians today. A few months after launching his campaign for President in 2015, Donald Trump’s views on guns are seen to have changed considerably: “Gun and magazine bans are a total failure. That’s been proven every time it’s been tried. Opponents of gun rights try to come up with scary sounding phrases like ‘assault weapons’, ‘military-style weapons’ and ‘high capacity magazines’ to confuse people. What they’re really talking about are popular semi-automatic rifles and standard magazines that are owned by tens of millions of Americans.” Speaking in January 2016, Trump stated: “I will get rid of gun-free zones on schools — you have to — and on military bases. My first day, it gets signed, OK? My first day. There’s no more gun-free zones.”

Following the Orlando shooting, Trump stated in June 2016, “If you had some guns in that club the night that this took place, if you had guns on the other side, you wouldn’t have had the tragedy that you had.” This turned out even to be too extreme for the NRA, which stated that “No one thinks that people should go into a nightclub drinking and carrying firearms. That defies common sense. It also defies the law.”

Similarly, Justice Antonin Scalia came to embrace a fanatical view of the Second Amendment, and since Trump has indicated he will try to appoint someone like Scalia to the Court, it is a safe bet to say that Trump will be seeking a similarly extreme voice for the Court on gun issues.

Do you have any concerns regarding gun control efforts in a Trump presidency?

The primary concern is that a series of Scalia-like judicial appointments would enshrine a deviant and damaging view of the Second Amendment that would thwart all reasonable gun control measures. For example, the NRA is trying to attack DC’s requirement that concealed carry permits should only be given to those establishing “good cause.” Justice Scalia would certainly vote to strike down this reasonable limitation on gun carrying in public, but the idea that the citizens of a city or state should not be able to enact reasonable gun restrictions is antithetical to our notions of federalism, inconsistent with the history of the Second Amendment, and bad policy to boot.

Climate Change and Environmental Policy

Environmental Law expert and leading environmental litigator Deborah A. Sivas, the Luke W. Cole Professor of Environmental Law and Director of both the Environmental and Natural Resources Law and Policy Program and the Environmental Law Clinic, on environmental policy and climate change in a Trump presidency:

What do you know about Trump’s plans for environmental policy? Can he roll back progress President Obama has initiated?

Deborah A. Sivas 1
Professor Deborah Sivas

Donald Trump has not evidenced any knowledge about environmental policy or any interest in learning about it.  I don’t think he cares about the subject at all, except as a superficial talking point.  For that reason, it is highly doubtful that he has a coherent environmental – or anti-environmental – agenda.  More traditional Republicans, who have long had the EPA in their crosshairs, will fill that gap by pushing hard for an administrator with a strong deregulation bent, much as they did during the early Reagan years.  The result in the 1980s was the disastrous tenure of EPA Administrator Anne Gorsuch, who severely cut the agency’s budget, hired management staff directly from industries the agency was regulating, and relaxed important regulations before resigning under a cloud of scandal, leaving the nation’s  premier environmental agency in shambles.

Do you have any concerns?

My worry is that smart people, like our graduates, will be dissuaded from pursuing opportunities at EPA and other federal agencies involved in environmental policy.  If we loudly defund, delegitimize, and demoralize our regulatory agencies, we not only set environmental policy back, but we lose the institutional capacity necessary to move forward again in the next administration.  I understand that there are people with alternative ideas about how to achieve environmental protection, and those voices certainly should be part of the discussion.  But that’s very different from destroying the agencies that Americans want protecting the environment.  I don’t see the election as an anti-environment mandate.  Social science research continues to show that, whatever their political affiliations, Americans strongly support the concept of environmental sustainability.  In my mind, the big challenge we face over the next four years is how to have conversations about what that concept means and what we collectively want for the future – even as some will try to dismantle the laws and institutions that unquestionably brought an end to things like the Cuyahoga River repeatedly catching on fire in the 1960s and the debilitating smog that choked cities like Los Angeles during the 1970s.

You’ve talked about depoliticizing environmental issues. Can you talk about that?

I have some hope that emerging ideas from the social psychology field might be useful in helping to bridge the unfortunate partisan divide on environmental issues and facilitate constructive dialogue.  That’s not to say we don’t need people to fight like hell to protect the progress we have made.  We absolutely do, and I think many organizations are gearing up to use the courts and political process to do just that.  But I’m most interested in how we can talk across the divide and depoliticize environmental issues.  Part of that is linking what’s happening in the world – enormous damage and community displacement as a result of increasing natural disasters like hurricanes and floods, contamination of water sources from reckless human practices, loss of functioning marine systems that support our fisheries through oil spills and poor management, etc. – to the everyday economic lives of individuals.  It is not about ideology; it’s about reality.  There is a lot of hard work to do there, and we need our best and brightest graduates to do it.  That’s why I’m urging them not to shy away from public service, even though it feels like a very difficult road at this point.

14 Responses to Post-Election Q&A: Stanford Law School Faculty Weigh-In on the Election of Donald Trump
  1. I am very disappointed in most of these articles. They seek to create a mass hysteria about the possible and forget that our country is both on of laws and of checks and balances. Unfortunately these articles, cloaked in legalisms, are merely a not too veiled expression of political philosophy. I worry approach does not prepare graduates to be critical thinkers and fully prepared for both the valleys and the peaks of life and their careers.

  2. When I read the title of the article I was eager to read what I thought would be an unbiased scholarly analysis of issues. What a disappointment. The bias is so strong in some of the authors’ responses that it discredits their entire commentary. Even some of the questions are posed with a heavy bias. However, my compliments to the two or three authors who gave unbiased, thoughtful and fact based responses. Kudos to you.

  3. The author on foreign policy was quite impartial but on other issues like abortion and immigration the bias was disturbing.

  4. The articles I read, which were almost all of them — were, to me, scholarly, informative, and well balanced politically. It seems to me that those who objected to them on the grounds they were biased were seeing bias only because their own bias trumped the rational discussions outlined by the writers.

  5. I too find these articles very disappointing – superficial, biased and lacking in any nuanced, deep analysis. As a Stanford alumnus, I find it quite embarrassing. It also shows how California is far out of touch with the rest of the country, and that Stanford smugly exists in its own little bubble.

  6. Really insightful commentary on substantive law and policy issues now at risk after the election. I think the professors did the best they could given the lack of legal & policy substance in Trump’s campaign.

    To the readers claiming bias, I would respond that (1) this is a Q&A of the professors’ opinions (informed by but not explicitly their scholarly research) and (2) scholarly research already supports that Trump’s articulated positions are explicitly a net negative for American jurisprudence. The difficulty the other comments bring up is that scholarship that weighs in on this issue overwhelming labels Trump a risk to and/or a direct negative influence on America’s policies, laws, and political institutions. It isn’t bias to report that—That IS the research. To hold otherwise is to accuse bias when facts don’t match up with your opinions going into the article.

  7. Prof. McConnell recently contributed to The Stanford Magazine a placidly empty discussion of the Electoral College, and it is disappointing to see him be tapped again to represent the university’s expertise.

    On the U.S. Supreme Court, Prof. McConnell lazily says that the Senate doesn’t have to do anything if it doesn’t want to. But the Senate did not just not get around to considering Pres. Obama’s nomination of Judge Garland — its majority leadership positively asserted that the President was not qualified to make a nomination because there would be an election within twelve months, and that the nomination of Justices should be subordinated to the election calendar. Are these two assertions so unimportant to Prof. McConnell that he doesn’t want to comment?

    On the Electoral College, Prof. McConnell ignores the question of why the Founders created it and implies that the current set-up’s deviation from one-man, one-vote is the Electoral College’s doing. Actually, the Founders’ intent was to separate the selection of the President from popular passions by putting it in the hands of an elite group. Why couldn’t Prof. McConnell just say that?

    Individual voters’ unequal weighting, being heavier in less populous states, doesn’t have anything to do with the Founders’ wanting to keep demagogues out of the Presidency. It was originally due substantially to the Slave Power’s need to ensure that the northern majority could not use the proposed new national government to threaten slavery. While the apportionment of grand electors to the states was affected by the weighting, this wouldn’t matter much if the electors were using individual judgment. Currently, it is the states’ unit-rule type laws regarding electors’ votes that makes the national result subject to the old weighting scheme.

    It is absurd that Stanford University, which has so much legitimate expertise in this and other areas, should be repeatedly represented so poorly as Prof. McConnell has done.

    1. Ryan should read up on the Connecticut Compromise again. The reason the Electoral College does give less populous states more power relative to more populous states did not have to do with the power of slave states to prevent a northern majority outvoting them. On the contrary, it was Virginia, where slavery was economically significant and extensive, which wanted a system where representation in Congress, and thus the Electoral College, would be proportionate to population, because AT THE TIME, Virginia was the most populous state and had extensive claims to Western territories. It was smaller states (NJ, CT), where slavery was negligible or much less significant, that wanted a system that gave more power to less populous states.

      You are inaccurately projecting the situation just before the Civil War, when free states had become more populous relative to slave states, back onto the 1780s.

  8. Losing is no fun, and when we lose we sometimes blame the rules or the referee. Professor McConnell is correct when he predicts that the Electoral College will never be eliminated, but he is incorrect when he states that “none of the original reasons for the Electoral College remain valid.” Most of the reasons for the Electoral College remain valid.

    The citizens of the United States do not directly elect the president. The states elect the president by selecting electors. Each state can have different rules in allocating electors based on a popular vote. My state, Texas, selects its electors in Austin on December 19. In many states, including Texas, electors are free to vote as they wish, disregarding the popular vote, although this rarely happens.

    The electors are not allocated among the states strictly proportionately. Each state receives two electors, regardless of population, just as each state receives two senators. The remaining electors are allocated to match each state’s representatives, but even then the allocation is not strictly proportionate to population. Each state gets at least one representative, regardless how small, and the census is taken only every 10 years. In 2016, the representatives are based on the 2010 census. In addition, the representatives are allocated based on total population and not voting citizen population.

    These rules for allocating electors (and senators and representatives) are not a quaint anachronism but are fundamental to the birth and sustainability of our nation. The smaller states would not have joined the union without some assurance that they would not be overrun by the larger states. The Electoral College and the Senate are two of the constructs of the Constitution designed to protect the smaller states. It is understandable that a citizen of California or Texas would not fully appreciate the eternal importance and validity of the Electoral College, the US Senate, or the minimum allocation of at least one representative to each state. Two hundred forty years of American history have neither invalidated nor diminished the smaller states’ need for these constructs. Without these covenants, the US never would have been, as the smaller states would not have bound themselves to NY, MA, and VA. Texas might still be part of Mexico, Louisiana part of France, and Florida part of Spain.

    As we observe the fascinating behavior of the Electoral College every four years, we must remember that the United States of America is not a monolithic state but a voluntary association of once-sovereign states. The diversity of the states is the greatest strength of America. No other nation on earth is a unified nation comprised of many sovereign states who voluntarily gave up much of their sovereignty yet still retain many powers guaranteed by a federal constitution.

    Each state can compete with the others through its laws for citizens and business, yet all states share a common currency, passport, primary language, president, judicial system, and defense. Competition among governments usually serves the interests of the governed. There is no place like the United States!

    Sadly, the malignant growth of the federal government has weakened the power and reduced the competitive, creative individuality of the states, to the detriment of all citizens. The federal government micromanages every aspect of economic life, from the indefensible minimum wage to the design of a health insurance policy. Let California have a $15 minimum wage, while Texas has no minimum wage, and then let the people decide where they would rather live, work, run their businesses, and pursue their happiness.

    Fortunately, the states still retain the Electoral College, one of the constitutional constructs that respects and preserves the integrity of statehood. The Electoral College will never go away, as it is a fundamental component of the DNA of the United States. Another ingenious constitutional construct to preserve the integrity of the states that so far has never been used is the Convention of the States (CoS).

    The discussion over the Electoral College is healthy to the point it encourages Americans to improve their knowledge of our nation’s history, our Constitution, and the inseparability of the two.

    1. Contrary to the notion that “the United States of America is … a voluntary association of once-sovereign states,” the majority of the fifty states are the creations of the national government, carved out of national territory. What sacrifice of sovereignty did Indiana make to become a state?

      There are interesting counterfactuals to explore, however.

      Might the areas conquered by U.S. citizens nominally in their private capacities (Hawaii, Texas, California) really have found it more advantageous not to be part of the United States? In the cases of California and Hawaii, the whole point was to become U.S. territory. Even if this might not have been the case for Texas, pro-annexation sentiment apparently dominated immediately and by far.

      Would small, non-slave colonies (e.g., Connecticut) eventually have joined a union initially composed just of Massachusetts (then including what’s now Maine), New York, and Pennsylvania, even if that union had no equal representation in a Senate? It’s tempting to think that they would have.

      The slave states, on the other hand, bolstered their weight in the proposed national legislature mainly by the three-fifths rule, which they achieved by ceding their extensive claims to Western territories and accepting a ban on slavery in the Northwest Territories. This would have worked for both chambers under the Virginia Plan of representation proportional to population in the Senate, but at least as of 1788 a Senate with equal representation for each state would accomplish the same thing.

      What all this has to do with the Electoral College is, well, not a lot. The College still doesn’t dependably buffer the Presidency from popular passions, as the Founders wanted, or select the people’s choice, as today’s majority wants.

  9. I thought most of these were written by the DNC. Professors clearly gave their own bias and prejudices to override facts. I wonder how most of these “lawers” can teach objectively.

  10. I too was excited to read the opinions of several Stanford scholars regarding what might result from the newly elected administration. However, I felt the same “media bias” provided before the election from many of the writers, and not the positive supportive ideas we expect from our great thinkers to enact the changes the people voted for. As with the media election blitz we endured that proved to be so wrong, we can see through it. I was disappointed and believe Stanford can do better.

  11. Personally I found this article to be insightful and informative. I do detect a bias, however, one that is much needed in this time of obfuscation and pandering. It is a bias in favor of intelligent academic analysis. Although I am sure that view will be completely lost on those commenting above.

  12. Thank you for putting this together. It was great to read the various perspectives of our respected faculty.

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