E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Consider
three general perspectives on the meaning of Trump’s victory for political regime
theory. One we can call “change as
order.” It is said that 2016 was a “change
election.” But doesn’t this sound a bit too
familiar? I believe we were told the
same thing from Clinton to Bush II in 2000, Bush II to Obama in 2008 and now
Obama to Trump. Considering this
sequence, we might ask whether voters were looking for change from the rule of
a particular party, or change regardless of party. Most commentators are in effect assuming the
former, but I think we should consider the plausibility of the latter, that our
governing order is being influenced by the desire of voters for change as such. Otherwise, it seems to me we have more
explaining to do.
Why? Well, if voters were seeking relief each time
from the irksome rule of a president of a particular party, they could have
accomplished that quite easily in 1996, 2004 and 2012. Remember the 1970s, when scholars worried
about the health of the presidency amid a string of one-term (or failed two term,
Nixon) presidencies? Whether the
presidency was actually in some difficulty or not, this is not us. We are living in an era of apparently successful
two-term presidencies. And at least two
of the presidents, Clinton and Obama, left office (will leave office) reasonably
popular. But obviously the presidencies
that replaced them involved (will involve) some fairly substantial policy
shifts. What moves voters to keep
rejecting the status quo?
“Change
as order” means voters keep rejecting the efforts of successful presidents to extend
their policy legacy out of a desire for change as such. All non-incumbent presidential elections are
now change elections. This suggests that
something is wrong at a deeper level, with the constitutional order itself. No president regardless of party can generate
their own order, an electoral coalition that persists. Because I think the decline of trust in
government since the 1960s is one of the crucial issues for our constitutional
order, it seems likely to me that continuing low trust is one of the factors destabilizing
the efforts of each president to create a lasting legacy. Another factor seems to be the persistent
unhappiness of many voters with the policy and candidate options they are presented
with. Recall how many “regular
Republican” candidates and policy positions were trampled in Trump’s rise.
The
second perspective I will call the federal order versus the national order, or
red states versus blue cities.
Right
now, the Republican party controls the federal order and appears to be dominant
because of this control. Most states are
controlled by Republican governors and legislatures. Republicans control the federally-organized
Congress and Donald Trump prevailed in the electoral college. But for the most part, cities, the favored
gathering places of college educated elites, are blue. The red state-blue cities phenomenon has been
noticed. But I suggest we should focus
on what this means for the relationship between elites and outsiders (the term
“masses” seems a bit old fashioned). On
a federal basis, cities are outnumbered in our representative system. But cities have their conspicuous strengths. Unless I am missing something, they are
economically dominant in the nation, creating most new jobs and providing a
critical and creative social dynamism. They
are “Hamilton” – uncompromisingly multi-racial, multi-ethnic, cosmopolitan
cultural metropoles. Once the economic
centrality of cities is taken into account, it seems off to me to claim the
Republican party is dominant simply because it dominates the federal
order. Rather what we have is a very
uneasy bipolar coexistence – neither the federal order or the elite-driven
national order is truly dominant.
The
third perspective I am less certain about.
The idea is that policy space is dominating electoral space. Our presidential elections are changing less
and less (I dimly recall Garry Wills arguing that presidential elections are
not designed to change much). The
elected branches are being dominated by the institutional government, the
builded-out state (hopefully not to be burned out!). This is less because of the inherent
expertise of the bureaucracy than the persistent dysfunction of the elected
branches. But now that we have unified
government, things will be different? I
am skeptical. We have had unified
government several times since, say, 1992 and I’m not sure it’s made much of a
difference. If I’m right that presidents
can’t build lasting electoral and policy coalitions, then the latest instance
of unified government will lead pretty quickly to divided government as voters
continue in their restless search for the kind of government they want rather
than the constitutional order we actually have.
But
I can be a little more specific as far as predictions. Let’s say Trump really is skeptical about the
reality of human-generated climate change.
The Republican party certainly is.
Now that they are in power, however, can they avoid the mounting policy
costs of doing too little? More and more
Americans, especially those on the coasts, have accepted (or will be forced to
accept) the reality of climate change in terms of its actual, present impact on
their homes and communities. This will
not change. That is, policy, or the
consequences of past policy decisions, will eventually dominate whatever
Americans thought they were doing in the 2016 election. The same goes for the consequences of an
aging population, the advantages of free trade, cyber security, take your pick. Policy and events are in the driver’s seat
because we haven’t made the sort of adjustments to our constitutional order
necessary to gain political traction over them.
All
of this relates to the ongoing viability of Skowronek’s theory of locating
presidencies in political time. I am on
record in this blog in 2012 as saying that “Skowronek should have stuck with
his original insight that the phenomenon of political time was waning as Reagan
took office. Skowronek tends to admit
that Reagan’s supposed ‘reconstruction’ was only partial in nature, but he then
later assimilates Reagan into the pantheon of reconstructive presidents
including Lincoln and Roosevelt. This
was never very plausible. Skowronek
accurately described a gradual ‘thickening’ in the institutional order over
time, making it more difficult for presidents to be truly reconstructive. This should also have meant that the
presidents operating in Reagan’s shadow had their own difficulties operating
within Reagan’s ‘reconstruction’ and handling a complex set of state
institutions.” And this is indeed what
we are observing.
To
put it another way, because of the enormous amount of state building that has
occurred, we can’t have reconstructive presidents. Our situation is more akin to the one
Skowronek hinted at in his “waning of political time” discussion, a series of
preemptive presidencies, in which each president attempts to show mastery over our
resilient built-out state by selectively
preempting policies of the prior president.
Consider in this light Skowronek’s central insight: “the power to
recreate order hinges on the authority to repudiate it.” But arguably no president since FDR has
possessed the sort of warrants necessary to repudiate the New Deal-Cold War
state. If he wishes, Trump can try to
repudiate the entire world order built after 1945 (which is why I initially termed
him the ultimate preemptive president) and, at home, the activist state. If I’m right, he won’t get very far.