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What Would a Sanders Presidency Mean for the Rule of Law?

Bernie is an outsider promising big changes but offering no clear sense of how to accomplish them. Sounds familiar.
February 25, 2020
What Would a Sanders Presidency Mean for the Rule of Law?
(GettyImages / Shutterstock)

In the first Democratic nominating contest that featured substantial ethnic and racial diversity, Sen. Bernie Sanders triumphed, securing more than twice the vote share of second-place finisher Joe Biden. In polls from South Carolina, the last solo contest before Super Tuesday, Sanders is catching up to Biden, and may even win. In other words, it’s time to consider what a Sanders presidency might look like.

For moderate Democrats, Sanders is a nightmare for some of the same reasons that Trump terrified many Republicans in 2016: Running at the top of the ticket, he would drag down Senate, House, and even state and local candidates across the country. From the Democratic point of view, if Sanders were to defeat Trump in the general election, those down-ticket losses might be survivable in the short term. But were Sanders to lose the presidency and cost the party many seats in the House and in state legislatures, Democrats risk giving Republicans back united control of the federal government and ceding even more statehouses to the GOP.

For disaffected Republicans, the choice is less strategic. For those who object to President Trump’s protectionism, redistribution programs, political and economic disruptiveness, and obsequiousness to dictators, voting for Sanders hardly alleviates their concerns. Sanders’s saving grace may be that he lacks the incumbent’s personal indecency and mafioso instincts.

But just because Sanders wouldn’t mimic Trump’s assaults on the rule of law doesn’t mean he wouldn’t start his own. Voters from any party who think of their ballot as an attempt to restore the constitutional order shouldn’t be under the illusion that a Sanders White House will herald a return to normalcy.

The most obvious reason is that Sanders has repeatedly and vocally supported authoritarian leaders. Sanders counted himself as the highest-ranking American official in Nicaragua for the Sandinistas’ “Seventh Anniversary of the Revolution” celebration in 1985. He called the Nicaraguan revolutionary and president, Daniel Ortega, “an impressive guy.” Praising Ortega’s and his fellow Sandinistas’ “very deep convictions,” Sanders commented, “You do not fight, and lose your family, and get tortured, to go to jail for years to be a hack.”

And what was this Nicaraguan regime like? In the years between 1979 and 1987, an estimated 10 percent of the Nicaraguan population had fled Sandinista rule. Among the reasons refugees reportedly gave for leaving were “arbitrary arrest and detention . . . without due process as a method of harassment and intimidation” and “forcible resettlement” in which the “Sandinistas . . . confiscated family-size farms and ordered their former owners to move from their villages into state-run farms.”

Of course, Sanders isn’t a Sandinista. But his defenses of the Sandinistas in 1985 suggest that he, like they, considered the rule of law to be a luxury rather than a necessity for a just society. Noting that the Sandinistas were at war, he called the “temporary suspension of certain civil liberties” “complex.”

More recently, Sanders offered praise for the Castro government in Cuba. “We’re very opposed to the authoritarian nature of Cuba but, you know, it’s unfair to simply say everything is bad,” he remarked. “When Fidel Castro came into office you know what he did? He had a massive literacy program.”

Sanders’s statement about Cuba was in line with his recent rhetoric, which has clearly supported socialist economic policies without the abuses and injustices that come with radically reordering society.

But that distinction doesn’t resolve the issue. If Sanders regarded the rule of law as sacrosanct and necessary to the proper functioning of society, he would have recoiled in revulsion from Castro and Ortega. Instead, he cheered them on.

Maybe Sanders’s disregard for the rule of law abroad wouldn’t be quite so disturbing if the rule of law at home weren’t so degraded. But the next occupant of the Oval Office will either work to undo the Trump administration’s transgressions—or will help to solidify them.

Some of Sanders’s current and former rivals for the Democratic nomination have already trumpeted their intentions to use their power in thoroughly Trumpian ways. Sanders, by contrast, has limited himself to vague promises of a “political revolution,” which sounds like a more exciting way of describing a wave election in which Democrats expand their House majority and take control of the Senate and White House. His most famous policy proposal, Medicare for All, is a legislative project. Whatever its faults, pursuing it would follow the constitutional process for legislation.

But there’s no reason to assume that Sanders is uniquely impervious to Miles’s Law, which holds that where you stand depends on where you sit. Barack Obama repeatedly lamented his inability to change immigration law through executive action . . . until he did it. George W. Bush never campaigned on operating a clandestine archipelago of CIA black sites to host a controversial detention/rendition/interrogation program. But convinced after 9/11 that national security required such a program, his administration claimed the authority it needed.

Maybe Sanders is different. Maybe the man whose views are so extreme that his congressional career has been spent in the wilderness secretly understands the value of moderation. Maybe there’s an unexplored and unexpressed part of his worldview that venerates the role of legislators in policy formation. Maybe the man who called for a political revolution will be satisfied for his signature policies to be mangled beyond recognition by the House and die a slow death in the Senate.

Or maybe not.

There’s no sure way of knowing how Sanders will govern, mostly because he hasn’t been an executive anywhere larger than Burlington, Vermont, which at the time had fewer than 40,000 people. (By comparison, South Bend, Indiana, where Pete Buttigieg was recently mayor, has about 100,000 people.) But there’s reason to worry that any Trump successor who isn’t specifically focused on repudiating his legacy will take advantage of the executive powers he has effectively created.

Sanders’s penchant for surrounding himself with less-than-desirable people provides an example. One campaign surrogate, Rep. Ilhan Omar, was so noxious that her own party tried to denounce her in an official resolution. Another surrogate, Linda Sarsour, has supported the notorious anti-Semite Louis Farrakhan and the convicted murderer Assata Shakur.

President Trump’s method of rewarding supporters and surrogates who couldn’t get confirmed by the Senate has been to appoint them as “temporary” personnel, exploiting a loophole in the law intended to ensure continuity. One exemplar is Ken Cuccinelli, who currently holds simultaneous posts as the “senior official performing the duties of the director” of Citizenship and Immigration Services and the “senior official performing the duties of the deputy secretary” of homeland security—in which he answers to acting Secretary of Homeland Security Chad Wolf.

Maybe political prudence or procedural tradition would be enough to convince a President Sanders not to follow President Trump’s example. But Sanders should at least be asked whether he foresees places for Rep. Omar and Sarsour in his administration. And given that the Senate may stay in Republican control, he should have to explain how he would work with Republicans to staff his administration.

The same logic applies to the president’s emergency powers. Would Sanders balk at declaring national emergencies to combat climate change or income inequality? The president’s powers in emergency situations are sweeping, and in some cases merely asserting the existence of an emergency is sufficient to activate those powers. Just ask President Trump and the congressional Republicans who voted for his border wall emergency.

There’s a lot of campaigning left to go. If Sanders does become the de facto Democratic nominee in the next few weeks, he’ll have another seven or eight months to explain his commitment to the rule of law and how he plans to use his time in office to reinvigorate the constitutional system. He can explain to his core supporters and those whom he hopes to reassure and bring along why the liberal tradition of individual rights and constitutional government is superior to other systems.

Or he can keep on talking about a political revolution that fundamentally changes everything. But if he does the latter, no one should be mistaken about where he stands on the former.

Benjamin Parker

Benjamin Parker is a senior editor at The Bulwark.