The split result of this month’s election—a victory of almost 6 million votes and four percentage points by former Vice-President Biden over President Trump in a high-turnout election, Republican gains in the House and in the states, and Republican wins in key Senate races Democrats had been counting on—highlights a genuine gap between support for Trump and support for other Republicans.
Republicans outperformed Trump in Senate races that had seemed within the Democrats’ reach in Maine, North Carolina, Texas, Georgia (where the final result awaits the January runoff), and Michigan. Despite the widespread view among individual down-ticket Republicans that Trump must not be crossed—and thus that he must be humored in his continued pretense that he won the election—it appears that there might be a decisive minority of Republican and Republican-leaning independent voters who prefer them to him.
For all the dismissal of “Never Trump” conservatives and Republicans as a small elite group, there seems to be a small but potentially decisive sliver of voters who rejected Trump without turning away from the Republican Party as a whole. That doesn’t mean that the high-profile Never Trump faction straightforwardly speaks for this sliver of voters. Still, it does create an opportunity for them to try to do so, and to gain some leverage on the terms of any rapprochement with the Republican Party as a whole.
The Never Trumpers are a disparate group, united only by their titular rejection, not by their affirmative views. But using this leverage—whether as a faction within the Republican Party or the conservative movement, or as a group standing outside of them and trying to build alternatives to them—will require some agenda beyond the one that will be achieved on January 20. It will also require some persuasion as to what moving beyond Trump means for the party.
The time will be ripe for putting an agenda forward. The Republican Party need not be personally beholden to the Trump family for the next few years—at least until and unless Trump takes serious steps to mount a 2024 campaign or his children jump into electoral politics. Rival factions are already taking shape among those seeking to carry Trumpism forward without Trump, each with their vision of what that means: Catholic integralists, populist protectionists putting on a show of being a working-class party, nationalists obsessed with preventing non-white immigration. Their division and competition might open the space for another faction, one aimed at repairing the institutional weaknesses that Trump’s rise to, and abuse of, power highlighted. And there are ways to do this that other Republicans at least might sign onto when doing so does not mean challenging a sitting president of their own party.
I don’t know that this would succeed; I’m not particularly optimistic. Partly it depends on how strong a hold Trump personally retains on the party through threats of primary challenges. But I think the way forward for the Never Trump impulse as a discrete faction has to look something like this. Unlike some of my Niskanen colleagues, I’m a sympathetic outsider to Never Trump, not having been either a Republican or a conservative before he came on the scene. But I genuinely am a sympathetic outsider, and I believe that a functioning constitutional democracy requires two functional political parties that can responsibly alternate in power. Thus, I sincerely wish them success in building a center-right faction or coalition that can learn the lessons of the last four years. While I understand the impulse of critics who use metaphors like “burn it all down” or “salt the earth” in response to pervasive (and ongoing) Republican complicity with the administration’s many wrongs, these are metaphors that can’t actually mean anything; neither 70 million Trump voters nor thousands of Republican elected officials will disappear. There will be and needs to be ongoing disagreement and contestation in the political system. The hope has to be that there’s a way to bring that contestation within the bounds of decent constitutional democratic norms.
It’s in that spirit that I suggest what a Nevermore Trump agenda could look like, one that goes beyond Trump’s personal unfitness for office and reaches the structures, incentives, and ideas that shaped his campaign and presidency.
Procedures and institutions
With Trump out of office, there is no reason for Republicans not to support, for example, a statutory requirement that tax returns be disclosed along with the current personal finance disclosure when a presidential candidacy is declared. They could likewise support Congressional action to give meaning and teeth to the emoluments clause. Hatch Act reform should reaffirm restrictions on politicking by Senate-confirmed officers (members of the Cabinet, ambassadors), and find constitutionally permissible ways to give the Office of the Special Counsel more power to enforce those restrictions than the ignorable advisory standing it now has. In exchange, it might give a little more leeway to the president’s immediate circle of political advisors.
Restoring Congressional authority
With a Republican Senate and a Democratic White House, it should certainly be possible to find a coalition in support of rebuilding some of what was broken by the Trump administration’s contempt for the separation of powers. This includes enhancing Congressional oversight and investigative capacity: the Trump administration’s near-blanket refusal to comply with House subpoenas over the past two years demonstrates a real breakdown that has to be repaired. Reform should also include a clear return of the “power of the purse” to Congress, in light of the Trump administration abused emergency powers to use funds Congress had refused to appropriate to build the wall on the Mexican border. For that matter, reform should also include rollback of the many statutes that authorize presidential declarations of indefinite emergency in the first place. Finally, Congress should tighten the Federal Vacancies Reform Act. The U.S. Constitution envisions an executive branch whose principal officers have been vetted and confirmed by the US Senate, not one filled with unqualified Acting Secretaries installed by presidential whim.
Much of what I have described above under 1 and 2 is included in the Protecting Our Democracy Act introduced by Speaker Pelosi in the fall. Republicans were sure to oppose it under Trump, but it could be a Nevermore Trump priority to bring Republicans around to supporting that bill or something like it. At the same time, a Democratic president would be the one immediately restrained. And other parts of what I’m discussing here featured in Sen. Mike Lee’s (R-UT) Article One Act (see more by Ramesh Ponnuru here) aiming to reassert Congressional authority over declared emergencies. That was a nonstarter with Democrats in the immediate context of Trump’s declaration of emergency, as the limits it proposed were only prospective. Still, it could be both a Nevermore Trump priority and an area of bipartisan Congressional agreement going forward.
Protections of the independence of the civil service and the Department of Justice
Trump’s impeachment-era purge of Inspectors General; his (and Attorney General Bill Barr’s) politicized interference in the prosecutions of Trump associates including Michael Flynn and Roger Stone; his October 22 executive order depriving tens of thousands of high-ranking career civil servants of their procedural protections, treating them like political appointees fireable at presidential whim; and the denigration and intimidation of professional expert employees in agencies from the NOAA to the Census to, most recently, the FDA and CDC, hang together as an extraordinary assault on the independence and professionalism of career executive branch employees who serve administrations of both parties.
The “deep state” mythology, adapted from Turkish President Recep Tayyip Erdoğan’s authoritarian campaign against his own civil service, has taken hold of right-wing talking points, and risks alienating the Republican party and conservative voters from the very idea of professionalism and independence on the part of career public employees. This is an underappreciated problem, broader than the covid-centered question of “trusting the science” makes it seem. Eroding the importance of career professionals and replacing them with ever-more political appointees tends toward the aggravation of political polarization. It increases the stakes of every presidential election if we lose sight of the part of the administrative state that is supposed to carry on doing its job from one administration to the next. And it degrades the quality of U.S. governance, driving educated professionals with options out of the public sector altogether, replacing independent expertise with currying favor with and flattering the opinions of the latest election-winner.
Solutions here will be complicated and will vary from case to case; there’s a case for statutory protection of Inspectors General, for example, that won’t generalize to U.S. Attorneys. Supporting Biden’s likely move to reverse the October 22 Executive Order is a clear beginning here, but this is an area where norm-rebuilding has to be as important as institutional fixes. We can’t and shouldn’t remove presidential authority over the executive branch; the bureaucracy can’t rule itself. Walking the tightrope between democratic accountability and professional independence is tricky. But the Trump administration has denied the need for balance at all, and it’s important work to get Republicans to take the problem seriously again.
This will be a harder pill for many Republicans to swallow than the other procedural and structural reforms described above; it can’t be presented in the short term as restraining President Biden. But it’s crucial for changing the incentives facing the party going forward. The strategy of always being the party of disenfranchisement, voter suppression, and throwing ballots out is a path toward permanent minority status, keeping the party in the hands of those who don’t care if it can never win a national plurality again, and those who are happy to retreat into the Senate and the courts as Federalists did after 1800. It leads to the election of Republicans who can’t win free and fair elections with— in particular— urban voters and voters of color having full access to the ballot box, and so creates a vicious cycle: those Republicans keep trying to keep those voters from voting, and so prevent other, more moderate, Republicans from running and winning.
Reformers who want to prevent that retreat and that spiral, to prevent endless repetitions of the shameful spectacle being led by Rudy Giuliani and company in Pennsylvania, Michigan, and elsewhere right now, should press hard to make the retreat impossible. A Republican Party worth restoring or rejoining can’t be one willing to entertain the idea of disenfranchising the city of Detroit.
Support for reauthorizing the Voting Rights Act is the sine qua non here. It will come at a short-term electoral cost to many Republicans, but will force the party to compete based on attracting more voters rather than preventing more votes. By the same token, Nevermore Trump Republicans should support the end of felon disenfranchisement and should reject such tricks as Florida Republicans’ restoration of it even after it was repealed in a referendum through the obligation to pay undiscoverable fines. Likewise, getting on the right side of easing voter registration and absentee voting are the actions of a party that aims to win by appealing to more voters rather than fewer in the future.
This does not have to mean agreement with Democrats on all particulars of election reform. Genuine differences between Republicans and Democrats on campaign finance, for example, precede Trump, and will survive the new Democratic capacity to massively outspend Republicans in nationalized elections. But it does have to mean a genuine change in direction about elections. The spiral of a Republican Party that seeks to win by restricting access to the franchise, which in turn reshapes which Republicans can win, is a dangerous one, not least because it creates the incentive for an ever-stronger entanglement with racism, white nationalism, and white supremacism. These changes would not only serve to separate the party going forward from what should be the embarrassing memory of Trump’s attempt to steal the 2020 election; they would interrupt that spiral. Serious Republican reformers must be democratic reformers as well.
Trump’s biggest departures from ex ante Republican orthodoxy came in his trade wars and gleeful embrace of tariffs, including his abuse of national security exceptions in trade law to impose what were plainly mercantilist tariffs against U.S. allies. This is the best issue on which Nevermore Trumpers can try to remind other Republicans of who they used to be and what they used to believe; and if it fails, that says something worth knowing about how little of the pre-Trump GOP survived his takeover. It has the added advantage of unifying most existing Never Trumpers, unlike questions of defense policy that divide, say, libertarians and neoconservatives.
This should combine immediate deescalation of the trade wars of the last four years and a clear recommitment to multilateral trade agreements and dispute resolutions. It should also include as under Lee’s Article One Act described above, a reduction in the unilateral presidential authority to impose tariffs under national security pretexts.
Free trade should be the easy case for persuading some Republicans to abandon Trumpist policy. Immigration is the hard case. In neither case will the whole Republican Party move back, but both are the kinds of fights that make it worth having a Nevermore Trump faction in or adjacent to the party. The reasoning here is threefold.
First, demagoguery about immigration was the core of Trumpist politics. The question of whether the Republican Party is permanently susceptible to such racist demagogic takeover is inextricable from substantive debates about immigration. Leaving the party entirely in the Tom Cotton-Stephen Miller wing’s hands guarantees a return to Trumpist politics and caravan panics sooner rather than later. The time to start discrediting that wing is now, while the memory of (for example) the family separation policy is still fresh, not in the 2024 primaries.
Second, many of Trump’s abuses of governance and procedure— from the Census to the misappropriation of funds to build the wall, to the deployment of ICE and CBP agents against Black Lives Matter protests— were tied up with immigration. This is in part because border control is a particularly lawless policy domain, one particularly susceptible to arbitrary executive authority without legislative oversight or judicial procedure. Even so, the administration managed to overstep its very wide bounds repeatedly; it was in a hurry to throw immigrants out of the country and prevent new ones from coming in, legal authority or no legal authority.
This was, in its way, the culmination of Trumpist populism. The claim to represent the unified will of the true ethnonational people is what gives the nationalist-populist-authoritarian demagogue the purported right to override laws and procedures. In turn, he can invoke the need to act rapidly, to prevent the emergency of a foreign invasion, to stir up support for his fight against rival elites and procedural niceties. Taking a stand against the procedural abuses will thus really require pushing back on the Trump era’s anti-immigrant extremism.
And third, immigration is one of the issues, if not the issue, on which the sheer substantive awfulness of the Trump administration most stands out. From “drug dealers, criminals, rapists” through the Muslim ban through family separation, to the near-abolition of refugee admissions and resettlement in the U.S.— fewer than 12,000 refugees were admitted in fiscal 2020, more than an 85% reduction since 2016, with further cuts planned in the current fiscal year 2021— Trump’s attitude toward immigration has joined bigotry with cruelty. Administration policy has been so extreme that it not only should taint the whole memory of the Trump administration; it can taint it, provided that it’s not forgotten through the fog of covid and election drama.
Nevermore Trump means making the memory of this administration a dishonorable, disreputable one. Trying to reintroduce Reaganite views on immigration into Trump’s party may not succeed, but not even trying, papering over Trump’s record on this, would retroactively justify all the jibes that Never Trump was only a matter of disliking the man’s personality. Confronting the Republican division about immigration, arguing about Trump’s legacy on this terrain, in particular, makes it a visible priority to try to make the party more decent, and might tar Trump’s memory with the indecency it deserves.
Jacob T. Levy is Tomlinson Professor of Political Theory and Director of the Yan P. Lin Centre for the Study of Freedom and Global Orders in the Ancient and Modern Worlds at McGill University; author of Rationalism, Pluralism, and Freedom and scholarly articles including, most recently, ”Contra Politanism” and “Political Libertarianism;” a Senior Fellow at the Institute for Humane Studies; and a Niskanen Center Senior Fellow.
Photo Credit: The White House, Public Domain