Published April 20, 2016
No, President Trump could not make Mexico pay for a border wall.
President Cruz cannot shut down 30 federal departments and agencies.
President Sanders can’t impose a comprehensive $15 minimum wage.
President Clinton cannot negate the Supreme Court’s ruling in Citizens United.
A panel of law professors became the Party of No on April 13, as they responded to students’ questions in a forum titled “2016 Presidential Campaign Promises: Can They Be Achieved?”
The forum, sponsored by the Buffalo Human Rights Center, drew a substantial crowd to an O’Brian Hall lecture classroom. Questioners raised issues of immigration reform, mass incarceration, free trade, climate change and the presidential primary process.
In almost every case, interim Dean James A. Gardner, Professors Meredith Kolsky Lewis and Rick Su, and Associate Professor Anthony O’Rourke responded that the presidential candidates’ campaign promises were beyond the reach of the executive branch acting alone.
Why, then, do the candidates make such promises?
“It signals their commitment on a certain kind of issue and should be understood in its political context and not its legal context,” Gardner said. Campaign promises, he added, also signal an agenda for the eventual winner.
But, Gardner said, extravagant political promises come at a cost. “Presidential candidates deliberately confuse the public about the structure of governmental authority in this country,” he said. “You never hear a presidential candidate say, ‘I don’t have a position on that because it wouldn’t be in my authority to do that. Take it up with your governor.’ It seems like a form of negative civic education.”
But the candidates’ pronouncements did call attention to what was on students’ minds as the New York presidential primary neared. Among the comments:
On Bernie Sanders’ protectionist trade stance and opposition to free trade: “Economists agree that reducing trade barriers increases overall wealth in the economy. That’s why we do it,” Lewis said. “But when we do that, there are some segments of the economy that do better than others. Unions, autoworkers and steelworkers feel most vulnerable in the context of a trade agreement. Trade agreements are really good for the parts of our economy that can compete on the world level. Service providers, the banking, computer and telecommunications industries, really want these agreements. … It is very unlikely that we will abandon our trade agreements.”
On Donald Trump’s proposed Mexican border wall: “It’s not a constitutional problem, it’s not a legal issue, it’s entirely a political question,” Su said. “Can we do it? Sure. We’ve built big projects before. We built the Hoover Dam. We sent someone to the moon. So certainly it can be done. But the funding would have to come from Congress, and we'll still have to decide whether this is a good way to spend our money.”
On Sanders’s and Clinton’s promises regarding mass incarceration: “One in four African-American men is incarcerated,” noted O’Rourke. “African-American men without a college education, especially, have a staggeringly high chance of being incarcerated at some point in their lives. We have about 2.2 million people behind bars, and we incarcerate people at a rate comparable to the rate of imprisonment in Stalin’s gulags.” He was therefore inclined to give the candidates some leeway in using promises to signal their commitment to ending mass incarceration. But, he said, only about 290,000 inmates are held in federal prisons, so the next president would have to search for indirect ways to address this problem.
On Trump’s openness to expanding the number of countries with nuclear weapons: “There is a nuclear non-proliferation treaty, and the signatories are bound by that regardless of whether the United States thinks they should not be bound,” Lewis said. “Those countries have their own views about what they should do, and they think it’s a really bad idea.”
But, O’Rourke noted, “The U.S. government uses foreign aid as a carrot to get countries to comply with the treaty. Trump was suggesting the United States no longer do that, and I think that would be well within the scope of the president’s powers.”