What is the impact of the Trump Presidency on our liberties? Executive Summary: It’s a mixed bag that was generally positive until Attorney General Sessions recent “guidance” on marijuana. On free speech, there has been small but likely meaningful progress. On gun rights, nothing earth shattering to speak of. On the judiciary, the Gorsuch and other appointments will best be viewed with some time and distance, but are certainly encouraging.
Freedom of Speech
President Obama was bad for civil liberties generally, and quite bad for free speech especially. Free speech in the U.S. saw its greatest retreat in generations under the Obama administration, with the diminution occurring chiefly and with the greatest damage on the campuses of colleges and universities. Because Obama was so bad, it’s not difficult for another president to shine in comparison. Merely not being hostile to free speech is a marked improvement, and that is generally what we see with the Trump administration.
If President Trump wanted to be a more vigorous supporter of free speech, he could direct his federal prosecutors to enforce the federal civil rights laws against those who routinely conspire to deny others their constitutionally guaranteed rights to free speech. Further, he could send in National Guard troops to protect those who wish to speak, protecting them against colleges, cities, and states which, at best, refuse to lift a finger to stop violence against speakers and their audiences. We haven’t seen any of that, which is a disappointment to those of us who are staunch First Amendment folks. However, there has been one major positive development on free speech in the past year, and it has come from Betsy Devos.
Betsy DeVos
Secretary DeVos announced in September that the Department of Education was reversing the truly vile efforts of the Obama administration to make post-secondary schools judge, jury, and executioners over men on campus. In 2011 the Obama administration sent a nineteen-page warning letter to schools. "Letter" is a bit of a misnomer as this document had an impact like a regulation – just without any of the due process involved in more formal rulemaking. Instructing schools to judge men quickly and harshly for any complaint lodged against them, the results were clear – no safety or security benefit to women, further ostracization of males on campus, and the taxpayers on the hook when the male victims got wise and sued. DeVos’ repudiation of this mess has and will pay huge dividends for freedom on campus.
Right to Keep and Bear Arms
President Trump was elected with the strong endorsement of all the gun rights groups, and with Hillary Clinton as his major opponent, it’s no wonder why. Ms. Clinton would likely have been the most anti-gun president in history. The Trump Administration hasn’t done anything to restrict gun rights, but it hasn’t done much thus far to lift the burden of improper laws or regulations currently in-force, nor has it acted unilaterally where possible. Nationwide concealed carry legislation, endorsed by Trump, has passed the House but faces an uphill battle in the Senate. As a step in the right direction, President Trump could move immediately to direct the ATF to accelerate its paperwork backlog on so many applications waiting for action. There is currently a wait time of over a year for many Bureau of Alcohol Tobacco and Firearms permissions. That is an unacceptable time window for them to process what is solely permission to purchase a special tax stamp, and functions as a denial of those applicants’ civil rights. Liberty lovers would like to see the president act in these areas to shore up his support with Second Amendment voters.
Equal Justice under Law
Candidate Trump offered perhaps the most sweeping disclosure of his intentions regarding the federal judiciary of any candidate in history. Revealing the very list of names of the people on his short list for the Supreme Court prior to the election gave Americans a massively valuable piece of information on which to cast their vote. If he kept his word. He did.
President Trump’s appointment of Neil Gorsuch to the Supreme Court may be his most lasting and pro-liberty action of all. A textualist and originalist, Gorsuch’s nomination represented a best-case scenario for those of us watching with a profound concern for Trump’s high court selection to replace Justice Scalia. Justice Gorsuch is just now sitting in his first full term on the Court. While we will have to see if his opinions are fully consistent with his previous work and our expectations, that is on him. President Trump’s nomination here was bigly pro-liberty.
The Ugly
As we reported here, earlier this month, Attorney General Sessions announced he is rescinding the Cole Memorandum regarding federal enforcement of marijuana laws, reversing the 2013 rule designed to restrict federal prosecution of those behaving legally under state law.
This sea change in the federal treatment of activities surrounding the production, distribution, and sale of marijuana and marijuana-related goods, comes when Americans are finally moving away from the drug war, largely considered responsible for rollbacks in recognition of constitutional rights since it began in earnest with the Nixon administration.
Candidate Trump told the American people this was an issue best left to the states. His administration’s actions here both betray that notion and set millions of Americans up to be federal felons in the near future. For those of us who believe the drug war has cost this nation plenty and accomplished nothing, this can be considered the president's low point for liberty this year.
Comparisons Can be Odious - BUT
Before the latest presidential election, I was fond of repeating that we should vote Republican for president for the simple fact that the press is only adversarial and inquisitive when a Republican is in office. If one believes a free press that engages and challenges those in power is vital to the republic, you can now rejoice.
As a keen observer of Ms. Clinton over the past 25 years, I am confident the Trump administration is light years better on liberty than a Clinton administration would be. That said, there is much work to do, and much room for improvement. Thus, we shouldn’t pop any corks for this administration’s efforts to date, but we can see that in most areas the needle is moving in the right direction.
Still, we must never forget: Eternal vigilance is the price of liberty, everywhere and always.
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