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Penn Law faculty respond to presidential election result

November 09, 2016

In the wake of Donald Trump’s election victory, Penn Law faculty members weigh in on the potential effects of a Trump presidency on issues ranging from the U.S. Supreme Court to immigration to technology policy.

 

Stephanos Bibas, Professor of Law and Criminology; Director, Supreme Court Clinic

President-Elect Trump will put between one and four new justices on the U.S. Supreme Court, as one seat is vacant and three justices are 78 or older. Much depends on whom he picks as Attorney General and White House Counsel, but if his lists of potential nominees are any indicator, he’ll be looking for someone who is not inside the Beltway, including state supreme court justices or perhaps even a sitting U.S. Senator (Mike Lee). A number of names on the list are excellent, including Judges Ray Kethledge (6th Circuit), Neil Gorsuch (10th Circuit), Steven Colloton (8th Circuit), Joan Larsen (Michigan Supreme Court), and David Stras (Minnesota Supreme Court). The Republican-controlled Senate would be happy to confirm any of them, but would balk if President Trump were to try to put his sister Maryanne Trump Barry (3rd Circuit) or Peter Thiel (Silicon Valley entrepreneur) on the Court instead.

Though it’s hard to forecast, the resulting Court would likely favor criminal prosecutors over defendants, defer to the President on immigration and foreign affairs, and be less willing to approve affirmative action or strike down laws as discriminatory. They’d also probably scrutinize the actions of government bureaucracies more closely, favor state governments over the federal government (as a matter of federalism), and be fairly supportive of Second Amendment firearms rights. Much depends on how much President Trump cares about the Court and how much he’s willing to cede or defer control to the Republican base, which cares much more.

 

William W. Bratton, Nicholas F. Gallicchio Professor of Law; Co-Director, Institute for Law & Economics

Mr. Trump’s policy statements are broadly deregulatory. He wants to cut the costs of government and free the field for stepped up investment. But neither securities regulation nor bank regulation shows up on his list of specific targets, so far as I am aware. I would expect him to use his appointment powers to head the relevant agencies with the same sort of people who ran them during the Bush administration of 2000 to 2008. I would not expect him to prioritize the removal of the Dodd-Frank Act, but I think it’s fair to project that the industry advocates in Washington who already have roll-back legislation drafted and ready to go will in time get a receptive hearing from a Trump administration. 

I expect the same to happen with the federal securities laws, particularly as regards private enforcement. Mr. Trump, in his business ventures across the decades, has never demonstrated much in the way of concern for his outside investors. Indeed, he boasts about walking away from his obligations under the cloak of bankruptcy. He will be business friendly but not investor friendly. 

 

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation

For federal regulatory policy, yesterday’s election signals major changes due to Republican control of both houses of Congress and the White House. The nation should expect to see substantive changes in a variety of areas, including trade, immigration, financial oversight, and environmental regulation. Some federal agencies are likely to be reorganized or at least substantially trimmed. In addition, a variety of structural reforms to the regulatory process will likely now move forward. House Republicans have passed multiple measures in recent years that would require additional analysis and legislative review before new regulations could take effect. Facing a presidential veto, such procedural legislation never went any further in the past. Now this kind of legislation stands a much stronger chance of passage. In the near future, we could well see the most significant reforms made to federal administrative law since the passage of the Administrative Procedure Act of 1946.

 

Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy; Director, Center for Ethics and the Rule of Law

As I watch the implications of last week’s election unfold day by day, I ask myself whether support for the rule of law as an ideal is, for the first time in our history, truly subject to doubt. With a long list of advisors and potential appointees that spurn and indeed mock rule of law values, coupled with threats to the freedom of the press, intimidation of sitting judges and unvarnished disdain for  legal authority, an insistence on bringing back banned methods of interrogation, and not-so-veiled encouragement to his supporters to engage in violence against political opponents and acts of racial and religious hatred, the Trump administration is likely to challenge the foundations of democratic governance in a way that many of us thought the U.S. would never encounter. 

The past 15 years have seen the steady expansion of executive power in the United States, with Republican and Democratic administrations making common cause of this approach.  While this is typical in times of armed conflict, the advent of terrorism within U.S. borders has done a great deal to weaken the resistance on the part of the two other branches of government to executive authority. Courts have largely refused to challenge the Obama Administration’s targeted killing decisions, even when the targets are American citizens, and Congress’ objections to the Bush era interrogation program was delayed and less than vociferous. In addition, neither branch has seriously questioned the expansion of the classification privilege by both administrations, though the increased governmental secrecy has made expansion of executive authority even more difficult to challenge. The Trump administration will be the lucky beneficiary of this newly powerful executive branch, and for this reason the next four years will sorely test our nation’s commitment to democracy. It will be critical that independent voices in Congress and the Judiciary hold their own in the changing legal and moral landscape.

 

Jean Galbraith, Assistant Professor of Law

The President has enormous foreign affairs powers. As the next President, Donald Trump can act without Congress in setting 1) foreign policy priorities; 2) ordering some uses of force abroad; 3) making international agreements that do not require legislative approval; 4) withdrawing the United States from most types of international agreements; and 5) representing the United States in dealings with foreign nations and international organizations. And this is just a partial list.

So how will President Trump use these powers? The range of possibilities is enormous — and terrifying. The president in waiting has no experience in government, few if any true advisors with meaningful foreign policy experience, and a strong preference for his own instincts over expertise. Many of the statements about foreign policy that he has made on the campaign trail are deeply alarming. In the next few months, we will begin to learn whether he intends to follow through on these statements. We will get some signals from his choices for key White House and Cabinet appointments. I have blogged elsewhere about the diffuse checks on the President’s foreign affairs powers that come from Congress, from the courts, from members of the civil and military service, and from allies and international institutions. In theory, these checks can put considerable constraints on how the President exercises his foreign affairs powers. Let us hope that they prove to do so in practice.

 

Serena Mayeri, Professor of Law and History

The election of the Trump/Pence ticket, especially alongside a Republican-controlled Congress, has potentially devastating consequences for Americans’ civil rights. Many of the progressive advances of the Obama years were accomplished through executive orders, agency rulings, and court decisions — all of which can be undone, some unilaterally in the short term, others through judicial appointments in the long run. To name just a few of the recent advances now in jeopardy: women’s reproductive rights; the rights of LGBT individuals to equality in employment, public accommodations, and family relationship recognition; and the robust enforcement of antidiscrimination laws protecting people of color, women, and individuals with disabilities generally. As disheartening as these possible rollbacks are, the missed opportunities to make further progress: toward racial justice in law enforcement; paid family leave legislation; access to reproductive health care; comprehensive federal protection from discrimination based on sexual orientation and gender identity; and more expansive definitions of family beyond the boundaries of marriage — among many others. And the President’s power to appoint Justices to the Supreme Court threatens enduring retrenchment.

Still, even if a Trump administration attempts a wholesale rights rescission, which it may not, public opinion surveys suggest strong popular support for many Obama initiatives. Preserving these gains will require creative and concerted political efforts by engaged citizens at the federal, state, and local levels. Fortunately, Americans’ long history of social movement protest, organizing, and activism furnishes hope of vindicating Dr. Martin Luther King, Jr.’s faith that “[t]he arc of the moral universe is long, but it bends toward justice.”

 

Sarah Paoletti, Practice Professor of Law

The election of Donald Trump as the next President is already having an impact on immigrant communities across the country, and the impact moving into the Trump administration, with a Republican controlled Senate and House, is dramatic. Even before the election, reports of bullying in schools and in communities across the country against Latino children and Muslim families were becoming more commonplace, raising fear in those communities about what a Trump Presidency would mean for them. Clients of the Transnational Legal Clinic here at Penn Law with pending asylum applications are asking their law student representatives what will happen to them — will they be deported to the countries they fled, having witnessed and experienced direct threats to their lives and the deaths and disappearances of close family members? The thousands of youth and their families who sought the opportunity to work lawfully and go to school without fear of deportation through President Obama’s Deferred Action for Early Childhood Arrivals (DACA) program are now fearful that they were wrong to step out of the shadows and seek permission to reside in the United States and become contributing members of our society. Will that decision now be used against them, and will their families be torn apart in the immediate deportation of the more than 11 million undocumented immigrants living in the United States? Will the IRS now share addresses and other information with the Department of Homeland Security for all of the undocumented immigrant workers who applied for Individual Tax Payer Identification numbers that have allowed them to pay taxes each year that they’ve been here and working?

It would be speculative to try to answer all of the above questions. People working in the field of immigration law who had assumed that we would see meaningful comprehensive immigration reform introduced in the first 100 days of a Clinton administration that would prioritize keeping families together, rewarding youth seeking to further their education and become productive members of the U.S. (the “DREAMers”), worker protections, and an earned legalization program for workers on temporary work visas in the jobs that U.S. workers are not filling, are now regrouping. And President-Elect Trump, not only through his campaign rhetoric but through his choices in immigration advisors, has already signaled we will be moving to a new era of restrictive and punitive immigration policies. Kansas Secretary of State Kris Kobach, who advised Trump throughout the campaign, has just been named to the transition team. Kobach is a proponent of the wall between the U.S. and Mexico, but is also the author of the sweeping anti-immigration policies introduced — and subsequently defeated by the federal courts — in localities such as Hazleton, Pennsylvania. The immigration-restrictionist think-tank Center for Immigration Studies (CIS) has also been advising President-elect Trump.  In April, CIS released, “A Pen and a Phone: 79 immigration actions the next president can take.” The list is long and comprehensive, and looks to restrict all aspects of immigration relief and promotes the notion that if you make life difficult enough for immigrants in this country, those that you cannot deport will self-deport, and those not yet here, will find it increasingly difficult to access the increasingly shrinking legal forms of entry.   

 

Kermit Roosevelt, Professor of Law

It’s very hard to know what a Trump presidency will look like. Trump himself is unpredictable, and his policy promises during the campaign ran from literally impossible to, one hopes, knowingly hyperbolic. On the issue of Supreme Court appointments, my guess is that he doesn’t care very much about the Court or the Constitution — which will most likely mean that he delegates the decision to more orthodox Republicans as a way to gain their support. Trump appointments will probably be reliable conservatives, which means the opening liberals thought they had with the death of Justice Scalia is gone. If another vacancy or two opens up, Trump can set the Court to the right for a generation, at least.

 

Ted Ruger, Dean and Bernard G. Segal Professor of Law

The election of Donald Trump potentially deals a fatal blow to the Affordable Care Act (ACA). As president he will control an administrative infrastructure that has the power to complicate or defund important portions of the statute, and we can predict that he will work with the Republican majorities in both houses of Congress toward a more dramatic repeal of important parts of the Act. The Republicans did not gain a filibuster-proof majority in the U.S. Senate so will have difficulty with an outright repeal, but expect early and aggressive actions led by Congress to fundamentally gut the ACA.

As to what would replace the ACA, we have not heard a specific or coherent vision for what President Trump would do in the healthcare policy area. His comments on the campaign trail were wholly negative about the problems the Act faces, but he did not offer a specific solution.

 

Louis S. Rulli, Practice Professor of Law and Clinical Director

In the wake of these election results, President Obama has wisely reminded us that we are all on one team. But is hard for vulnerable communities to feel that way after being vilified by such inflammatory campaign rhetoric and disturbing threats. Low-income communities and racial and ethnic minorities are struggling to attain access to justice and equal treatment before the law, but this struggle now seems much more difficult. If President-Elect Trump really believes that a respected federal judge cannot dispense justice fairly because of his ethnicity, it will be hard to convince the poor and minorities that they will get a fair shake in a Trump-appointed judiciary. 

Still, to his credit, Trump has pledged to be a president for all the people.  It now is our responsibility to ensure that this pledge extends to the most vulnerable among us.

 

Chris William Sanchirico, Samuel A. Blank Professor of Law, Business, and Public Policy; Co-Director, Center for Tax Law and Policy

The tax plan that candidate Donald Trump laid out last September has several key features: 1) it reduces the tax rate on ordinary income, with the top rate shirking from about 40% to 33%, 2) it reduces to 15% the rate on all business income, including but not limited to business income earned by corporations, 3) it leaves the top rate on long term capital gains and dividends at 20%; 4) it caps itemized deductions; and 5) it eliminates the estate and gift tax, though it tempers this by also ending to some extent the erasure of taxable built-in gains at death.

What President Trump will actually propose is unclear. His September plan was actually the third he presented while running for president, and it resembles a plan that had earlier been put forward by House Republicans, whose support he was seeking at the time. It remains to be seen whether campaign-trial compromises will be honored in the White House.

What Congress will pass is even less clear. Although both houses of Congress will be Republican, the Republicans have only a slim majority in the Senate. Senate procedural rules limit what can be passed without a supermajority. That makes it likely that passable tax changes will have to be palatable to at least some Senate Democrats. Moreover, even important Senate Republicans seem to have views that diverge markedly from Trump’s final plan.

 

Amy Wax, Robert Mundheim Professor of Law

The Nov. 7 op-ed in the Wall Street Journal by Shelby Steele says it all — one of the reasons for Trump’s popularity is that he has tried to scale some of the walls of political correctness. People are tired of all the victimology and identity politics, which distorts and casts a pall over every conversation. One hope is that it will become more acceptable to talk about respectability and the responsibility people from all groups have to obey the law and improve their own lives and communities — and that would be a good thing.

 

Christopher Yoo, John H. Chestnut Professor of Law, Communication, and Computer & Information Science; Director, Center for Technology, Innovation & Competition

Donald Trump’s victory has important implications for high-tech industries that have largely flown under the radar. Granted, given how favorably the Obama administration has treated Silicon Valley, some belt tightening was probably inevitable regardless of who won. That said, Trump’s core positions restricting immigration and opposing the Trans-Pacific Partnership directly contradict some of the sector’s top priorities. His call for a boycott of Apple over its refusal to rewrite its operating system to unlock the iPhone, his criticism of Amazon for avoiding paying taxes and potential antitrust violations, his condemnation of the AT&T-Time Warner merger, and his stated desire to close the Internet and limit the use of encryption to curb terrorism, just to name a few examples, reinforce concerns that the tech sector may be in for a rough four years.