Illustration for faculty op-eds about Trump

'Micro' op-eds from our Faculty of Law scholars

Illustrations by Gary Neill

From the Fall/Winter 2016 issue of Nexus

In a Trump America, what could __________ look like?

Trade policy: 

I believe his trade policies, if implemented, may precipitate a major international trade war and consequent global recession. His threat to impose massive tariffs on all Chinese imports would be a violation of WTO obligations and would obviously provoke retaliation by China. His threat to tear up NAFTA would be a grievous blow to Mexico’s development prospects, would cast a shadow on global supply chains everywhere, and may sideswipe Canada. His threat to repudiate the Paris Climate Change Agreement may well provoke other signatories to impose carbon tariffs at the border on US imports, again risking a trade war. None of this will make America great again. Stronger human capital policies designed to help workers adjust to the twin impacts of trade and technology on the workplace would be much more productive.

Michael Trebilcock //
University Professor

State surveillance: 

Trump takes over one of the most powerful surveillance systems the world has ever created. Many expect a strong push to undo the post-Snowden reforms that introduced some constraints, as well as a push against introducing laws to better protect privacy in the private sector. The public/private nexus of surveillance will continue to thrive. But the most concerning aspect of this is the social and political context in which it will operate: one based on division and bigotry where officials lie, the press is vilified, and the White House itself undermines important state institutions.

Lisa Austin //
Associate Professor

LGBT rights: 

What will LGBT rights look like? Who knows. Trump has no official policy, but his VP and his Cabinet are virulently anti-LGBT. The GOP, which controls Congress, has passed the most anti-LGBT platform in years. Trump has promised to appoint conservative judges to the US Supreme Court, and his first nominee, Neil Gorsuch, fits that bill. Trump has waffled on LGBT rights, saying that Obergefell (the same-sex marriage case) is settled law, but he has also rescinded the Obama administration’s guidelines preventing discrimination against trans students in K-12 schools. It seems like the weight of three branches of government are against same sex marriage and in favour of anti-trans legislation. Plus, it’s cheaper than building a wall. Trump and the GOP can deliver on their hateful promises to their base, with relatively little cost. The future looks bleak.

Brenda Cossman //
Director, Mark S. Bonham Centre For Sexual Diversity Studies

Healthcare: 

With a president driven by Twitter ‘likes,’ and fresh off the recent failure to dismantle Obamacare, it’s hard to say how the US healthcare policy winds will blow from now on. Trump plays to popularity, first slamming the impact of unconscionable pharmapricing on health care, but then picking a Secretary of Health, Tom Price, who is accused of conflicts of interests over his pharma and medical device stocks. Trump and the Republicans have further started a general assault on the regulatory state, with frontrunners for the job of Federal Drug Administration commissioner who don’t seem to believe in the need for strong regulatory control of drugs. The health of Americans risks being abandoned more than ever to market forces even if political reality may now force Trump to tweak Obamacare rather than abolish it.'

Trudo Lemmens //
Scholl Chair in Health Law and Policy

Security: 

In a Trumpian world, Canada must take care to ensure that we are not complicit in torture, the increased use of Guantanamo and discriminatory profiling of Muslims. We still have in place Harperera directives that allow us to share information when there is a risk of torture. We still have an inadequate and antiquated review structure that does not keep pace with Bill C-51’s vast information-sharing laws or the new powers it gives CSIS. Should an act of terrorism in the US have a Canadian connection, Trump’s anger will collectively punish Canadians, just as his initial ban on travellers from seven countries and Syrian refugees imposed collective punishment on Muslims.

Kent Roach //
Prichard Wilson Chair in Law and Public Policy

Religious freedom: 

A disaster. For one, Muslims (American or not) will continue to be targeted, as we have already seen in the controversial Muslim immigration ban. Second, the new counterterrorism program will only focus on radical Islamic movements, which will perpetuate the false perception that Muslims pose a special threat to the US and to the world. Third, the domestic culture wars are going to be ratcheted to a whole new level, with planned changes that will allow more church involvement in politics, and exemptions from federal laws on religious freedom grounds. Basically, Trump and his team’s warped view of religious freedom would inspire more hate, bigotry, and subvert the greatest experiment that the United States has given the world, i.e. the separation of church and state, and would leave America a lesser nation than when he took over its reins.

Anna Su //
Assistant Professor

Voting rights: 

During his campaign Trump falsely claimed that “millions of people” had voted illegally, and since winning the presidency, he has pledged a major investigation into voter fraaud. Given President Trump’s position, I predict that Republican-dominated states will be further emboldened to persist in their practice of enacting laws that are ostensibly designed to combat the virtually non-existent problem of voting fraud but which, in fact, serve to suppress the vote of minorities and low-income individuals— who tend to support the Democrats. While lower courts have recently ruled to protect voting rights, these gains may be undone once Trump’s nominee to the Supreme Court is confirmed.

Yasmin Dawood //
Canada Research Chair in Democracy, Constitutionalism and Electoral Law

Immigration: 

Immigration policy will be volatile. That is not to say that dramatic changes to law will be easy to accomplish; the speed with which the “Muslim Ban” unravelled in the face of legal challenge demonstrates that. And Mexico is not going to pay for a wall. Deporting millions of non-status migrants will be both impractical and opposed by powerful employers who depend on their labour. But government officials in immigration enforcement report that Trump has ‘unshackled’ them. Ordinary travellers at airports and ports of entry—not only Muslims—will quickly learn what has always been true: people are nowhere more powerless than at a border. And because thousands of people clear US immigration in Canadian airports every day, they will experience this reality on Canadian soil, with the assent of the Canadian government.

Audrey Macklin //
Chair in Human Rights Law

Investor rights: 

The Securities and Exchange Commission’s mandate to protect investors will remain the regulatory centerpiece regardless of the change in presidents. But, while Trump’s appointment of Carl Icahn as special adviser on regulatory reform may be good news for activist shareholders (including Icahn himself), it is unlikely that investors as a whole will benefit under Trump’s reforms. Why? Trump has advocated the reduction of bureaucratic red tape to allow businesses to flourish. He has suggested repeal of the Dodd- Frank Act, which currently regulates the financial industry for the purposes of consumer protection. Ultimately, investors, especially those in the middle class, will surely lose as a result of such drastic regulatory measures.

Anita Anand //
J.R. Kimber Chair in Investor Protection and Corporate Governance

Constitutional issues: 

The United States will be embroiled in a constitutional predicament throughout much of President Trump’s tenure. Trump declared that he will not divest himself of his overseas business empire—that he will keep it somehow separate from his presidential duties. This immediately gives rise to a constitutional problem under the Emoluments Clause, which is intended to preclude foreign influence in U.S. political affairs. Should any foreign government grant some indulgence to Trump operations in order to gain the President’s favour, it will run afoul of the Clause. Trump will argue that the president is not covered by the clause. He could also seek Congressional approval to carry on. In either case, this is a quandary that is likely to turn into a crisis.

David Schneiderman //
Professor

Global climate policy: 

President Trump is threatening to leave the historic climate agreement the world finally reached in 2015. Legally, the US can withdraw from the climate regime and stop financial support of climate action in developing countries. But withdrawal means yielding strategic ground to China, which is already positioning itself for global climate leadership. And while domestic climate action in the US may slow, it will continue regardless—through local and state policies, transboundary carbon trading, and business-planning for competitiveness in a decarbonized future. So, the Trump Administration may end up being big bark with small bite.

Jutta Brunnée //
Metcalf Chair in Environmental Law