This one is more musing than argument.
I was reading this column by Josh Kraushaar, which considers (as I had to myself) the idea that despite all the rumors and not-so-subtle hints from the Trump administration, Justice Anthony Kennedy may not retire this year, but could retire next year and turn yet another election into a referendum on the SCOTUS.
I was thinking about it in the context of the fragility — or fluidity — of the GOP coalition, which I’ve written about recently.
The reason the SCOTUS looms as large as it does in our politics — in 2016 or any other year — is because of the degree to which, for better and worse, the Court tends to remove issues from the ordinary give-and-take of representative democracy. The classic modern example is abortion, which likely accelerated the movement of social conservatives or “Reagan Democrats” into the GOP during the 1970s.
Abortion is an issue with what political scientists call “saliency,” meaning it’s the sort of issue that may never be tops with the masses, but is a the type of issue that creates single-issue (or near-single-issue) voters. And you could say much the same about the Second Amendment, or religious liberty — two issues that are not as firmly fixed in Supreme Court jurisprudence and motivating the Right to rally to the GOP when Justice Antonin Scalia passed.
Conversely, there are issues like same-sex marriage that the SCOTUS has essentially removed from the public debate. Despite issues on both sides with the quality of Justice Kennedy’s opinion finding a right to same-sex marriage, a new Pew poll finding increases in support for same-sex marriage among Republicans and evangelical Millennials and Gen Xers.
Whatever this means for society at large, as a practical matter, it seems as though same-sex marriage will fade as a political issue and potentially benefit the GOP. Indeed, in more cynical moments, I wonder whether this is why the Left has moved so aggressively on transgenderism — having won a big victory, they found themselves in need of their next wedge issue (note I said my more cynical moments; there’s more to it than that, obvsly).
So what does any of this have to do with immigration? After all, aside from Pres. Trump’s so-called “travel ban,” the federal judiciary already halted the DAPA program and immigration is thus not squarely before the SCOTUS.
Indeed, consider that the SCOTUS, in granting review in the travel ban case, signaled that it is likely to follow its general jurisprudence in this are, which respects the plenaty power over immigration granted to Congress (which in turn has largely delegated that authority to the President). This suggests immigration will not be one of the instances where the SCOTUS takes an issue away from the give-and-take of normal politics.
However, it is an issue where — as Peter Beinart notes — the Left has largely taken the issue off the Democratic table, in the sense that the party’s candidates must take a hard pro-migration stance, despite the potential economic and cultural impact of de facto open borders.
In contrast, the GOP can attract immigration hawks. Indeed, almost half of Trump voters would probably be at least open to the idea of voting for a Democrat, but for the saliency of the immigration issue with these voters.
Yet Trump has yet to treat his victory as a mandate on immigration. To be sure, enforcement has been beefed up (tho the bottleneck in immigration courts is almost certain to worsen before it improves). But he has not demanded immediate, substantial funding of the border wall that was his best-known campaign issue. And while he reversed the DAPA program Obama imposed by executive order, he has so far retained the prior DACA program, despite his ability to eliminate it with the stroke of a pen.
The question I found myself asking is, “What if Trump was as aggressive as he sounded during the campaign…and succeeded in a comprehensive clampdown on immigration?”
Apart from the immediate real-world impact, might that sort of success not also dramatically affect the shape of the GOP coalition?
I think of two imperfect analogies. First, it could be (and has been) argued that part of How We Got Trump was the erosion of Reagan’s coalition in the wake of his successes. Reagan’s tax policies are largely the paradigm of tax debates even today; even Pres. Obama was unwilling to undo the entirety of Pres. (George W.) Bush’s tax cuts. The GOP has not been very creative in tax policy since.
Reagan also set the stage for victory in the Cold War, which left the anti-Communist wing of the GOP searching for new foreign policy and national security paradigms. Post 9/11, the party largely rallied to the Bush Doctrine, but the overall results of that quasi-Wilsonian approach left an opening for someone like Trump to win questioning it.
Second, I think of the Conservatives’ disappointing showing in the UK’s recent snap election. Prime Minister May believed many of the nationalist voters who had voted for UKIP candidates in the past would break for the Tories to support her efforts regarding the UK’s Brexit from the EU. Instead, it could be argued that many UKIP voters who were formerly Labour voters returned home based on economic issues after the Brexit victory seemed secure (Labour, which had been split on Brexit, came around to accepting it).
Political successes — including nationalist ones — may contain the seeds of the destruction of the coalitions that won them. Accordingly, given the dogmatism of the Dems on immigration, it may be a good thing for the GOP that it is split on the subject, because the SCOTUS isn’t going to take the issue off the table for them.
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