Balkinization: Scenes from a Disjunctive Presidency

Scenes from a Disjunctive Presidency

A week after Donald Trump was elected in November 2016, I predicted—using Stephen Skowronek’s model of cycles of regime politics—that Trump would turn out to be a disjunctive president. He would preside over the end of the Reagan regime, just as Jimmy Carter had ushered in the end of the New Deal/Civil Rights Regime and Herbert Hoover had presided over the end of the long period of Republican dominance following the Civil War. That was not because Trump was anything like Hoover or Carter—both honest, intelligent, sober, and serious-minded men. It was rather because the Reagan regime is in a slow-motion collapse, a point I made in a speech at B.U. Law School in the fall of 2013 (and published the following year). The Republican Party, I argued, was in the midst of either a civil war or a nervous breakdown.

As a political regime grinds to its conclusion, the dominant party turns to heterodox outsiders who promise to restore past greatness, but instead find themselves overmatched by circumstance. They unravel the regime and create an opening for a new regime led by another political party.

Like Hoover and Carter, Trump is overmatched by forces beyond his ability to control. He has not ended the processes of decay; if anything, he has accelerated them.

The Trump Administration is now in its eighth month. My analysis remains largely unchanged, and recent events have only confirmed its basic outlines.

I. Donald Trump’s Two Tracks

Donald Trump has been unable to pass major legislation even though Republicans control all three branches of government. Instead, he has operated on two tracks. First, he has quietly continued to issue deregulatory orders, undermine environmental protection and labor regulation, while appointing about thirty or so federal judges, who have been recommended by conservative think tanks and key figures in the Federalist Society. Operating on this track, Trump is largely indistinguishable from a very conservative market-oriented Republican politician.

The second track is where Trump has gotten the most attention. In this mode, he has openly and flamboyantly played to his base of supporters through techniques of cultural warfare and white identity politics. He has engaged in a seemingly never-ending stream of populist—and occasionally racially inflammatory—actions and statements. In the process, he has attacked many of his fellow Republicans. But that is not because he is thinking of leaving the Republican Party; quite the contrary—he seems already to be running for reelection. Rather, it is because he is laying claim to control of the party. Polls indicate that his national support has declined by about a percentage point a month since his inauguration. Nevertheless, Trump still remains far more popular than most members of Congress. And as long as he remains popular among the Republican faithful, it is almost impossible for the vast majority of Republicans—even those he attacks—to disown him.

As the Republican legislative agenda has stalled, Trump has repeatedly turned to the second track as an overarching political strategy:

The Republican effort to repeal Obamacare collapsed in early August. Republicans in the Senate were unable to agree on a measure— no matter how limited—that would command even 50 votes. President Trump, predictably, blamed everyone but himself, and then proceeded to tweet that he would expel transgender persons from the U.S. Armed forces.

In mid-August, neo-Nazi and white supremacist demonstrators descended on Charlottesville Virginia, ostensibly to protest the removal of a Confederate statue, but actually to network and assert their growing strength in American politics (the rally was entitled "Unite the Right"). After violence erupted between the protesters and counter-protesters, a woman was killed by a neo-Nazi sympathizer who deliberately ran over pedestrians with his car.

President Trump did nothing to defuse the situation. Quite the contrary, he enraged much of the public by seeming to equate neo-Nazis and white supremacists with the counter-protesters who organized against them, "condemn[ing] in the strongest possible terms this egregious display of hatred, bigotry and violence on many sides, on many sides." Two days later, he angrily responded to critics in an impromptu statement at Trump Tower by insisting that protesters on the left were just as much to blame for the violent confrontation as the neo-Nazis and white Supremacists who organized the rally, pointing out there were "very fine people on both sides." Presumably, these "very fine people" included those who carried Nazi swastikas, racist signs and torches, and shouted slogans like "Jews will not replace us."

The idea of people proudly chanting anti-Semitic slogans in the streets is chilling enough; it is even more chilling that these protesters were grateful to the President of the United States for changing the political climate in their favor.

On Friday August 25, as Hurricane Harvey battered Texas's Gulf Coast, and while public attention was diverted, Trump issued a formal executive order calling for the removal of transgender service personnel from the Armed Forces. He also issued a presidential pardon to former Sheriff Joe Arpaio of Maricopa County, Arizona. Arpaio had been convicted on federal contempt charges for openly defying a federal court order to stop racially profiling Latinos suspected of being undocumented aliens. Prior to the contempt conviction, Arpaio had been notorious for his race baiting, corruption, incompetence, and inhumane treatment of prisoners.

By this point in his Presidency, Trump's political strategy has been reduced to radical gestures that please his populist base, no matter how much they may outrage the rest of the country. Indeed, he welcomes the scorn and calumny of his political opponents: the more outrageous his speech and actions, the more he signals that he is standing up to the globalists and the elites—and that he is on the side of the real Americans. In this sense, the Arpaio pardon was less a dog whistle than an air raid siren.

Overhanging all of this is the continuing investigation into the relationship between Trump, his associates, and Russia. As the evidence slowly mounts, Trump acts more and more like a person who has something to hide, and who knows that the authorities are getting closer and closer to discovering it.

II. The real cause of political dysfunction: the end of the Reagan Regime.

What does all of this tell us about constitutional dysfunction? Throughout his presidency, Trump has had the advantage of Republican majorities in both Houses of Congress and a Republican majority on the Supreme Court. And yet political dysfunction at the national level is as bad as the last four years of the Obama Administration—perhaps even worse.

By the end of September, Congressional Republicans must raise the debt ceiling and appropriate funds to keep the government running. I expect that they will manage to do both. But the fact that both politicians and markets are increasingly worried about whether Republicans actually can keep the country running and prevent the world economy from imploding, is an additional sign of profound political dysfunction.

When people wrote about political dysfunction during the Obama years, they assumed that a significant cause of dysfunction was divided government combined with intense political polarization.

But that is not the case today. If Trump and his party have been ineffective, it is not because of divided government. After all, when the Democrats controlled the White House and both Houses of Congress between 2009 and 2010, they got a great deal accomplished. Rather, the dysfunction is due to other, deeper causes. Recent events are additional evidence for my thesis that we are at the end of the Reagan regime and in the midst of disjunctive presidency.

A central reason why Trump is getting nothing done is that the Republican coalition of the Reagan regime—which currently controls both national and most state governments—is far weaker than it appears on the surface. Indeed, it has been slowly disintegrating for some time. Indeed, it is *because* the coalition is disintegrating that Republican voters turned to a racist demagogue like Trump.

Coalitions decline and fall when their constituent parts factionalize and turn on each other, and when their agenda becomes irrelevant to the problems that the country faces. In some cases, the coalition may be the victim of its own success. Its solutions—and its ideological agenda—may be a cause of the problems the country faces. The New Deal coalition unraveled in the tumult of the late 1960s and 1970s; something structurally similar is happening to the Reagan coalition today.

The Reagan coalition came together on a mission to deregulate the economy, shrink the size of government, and above all lower taxes, especially (as it turned out) for the wealthy. This formula has proved inadequate to respond to the social problems of the present, no matter how strong the party seems at present. In the long run, the disconnect between Republican ideology and public expectations is unsustainable.

This disconnect helps explain the failed attempt to repeal Obamacare. The American public had gradually come to view access to health care and affordable health insurance as part of the social contract—something the government should work to guarantee. This assumes, however, a vision of government deeply at odds with the ideological assumptions of the Reagan-era Republican Party. It is especially at odds with the desires and interests of the donor class who support Republican politicians and drive the party's agenda. Obamacare secured access to health care through redistribution— it raised taxes on investment income; and it grew government entitlements— through insurance subsidies and the expansion of Medicaid. No wonder that Reaganite true believers despised it.

Even so, Congressional Republicans could not repeal Obamacare because they never reached a consensus on what to do in light of changed circumstances. They never reached a consensus because what most of them actually wanted to do was deeply unpopular—hack away at Medicaid and deregulate the insurance industry in order to pay for tax cuts for wealthy Americans. What most Congressional Republicans really wanted, in other words, was yet another version of the Republican post-1980 policy agenda—to cut entitlements and alleviate fiscal and regulatory burdens on the donor class. As the saying goes, when all that you have is a hammer, everything—including your solution to health policy—looks like a nail.

At the same time, Republicans—and Trump himself—promised something very different to the public. They repeatedly blamed Obamacare for raising premiums and limiting access to health care. They promised that their plan—never fully specified—would lower premiums, and extend access to health care for more people. In fact, all of their plans would have done the opposite—leave tens of millions without health insurance and raise rates for the elderly and the sick. To keep the Reagan coalition running, in short, Republicans engaged in demagoguery on the health care issue for years and repeatedly misled the public about what they would do. Eventually, the piper had to be paid.

I emphasize these points because no matter who the Republicans nominated in 2016, they would have faced this dilemma. It is unlikely that Presidents Ted Cruz, Marco Rubio, or Jeb Bush could have resolved the central problems facing the Reagan regime and the Republican coalition. They would have faced a fractious party with radicalized elements, with each element demanding that things be done their way or not at all. They would have faced a deep disconnect between what the public thought it was getting in health care reform and what the donor class—and therefore Republican politicians—were planning to give them.

Quite apart from Trump's incompetence, the Senate filibuster rules, and the House's Hastert rule have hampered Republican ambitions. Republicans are forced to pass legislation with only Republican votes, giving them little room for error, and making it possible for a small number of Congressmen and Senators to hold up passage in the service of conflicting and contradictory demands. The Senate's procedural rules significantly limit the kinds of reforms that Republicans can pass through reconciliation.

III. He who lives by demagoguery and obstruction shall die by demagoguery and obstruction

The emergence of a racist, ignorant demagogue as the political leader of the Republican Party and the procedural difficulties that Republicans face in the House and Senate might seem wholly unrelated. But both of them are connected to the forces that produced the rise and fall of the Reagan regime.

The Reagan regime kept itself in power by combining its deregulatory and tax cutting policies— which primarily favored elite donors—with anti-elitist rhetoric, white identity politics, and strategies of political polarization. Republicans repeatedly found cultural wedge issues and symbolic crusades to anger their base and focus them on issues of culture and white identity. Republicans created a world in which Democrats were, as Newt Gingrich once said of Bill Clinton, “the enemy of normal Americans.” Republicans created a world in which Barack Obama, a neo-liberal policy wonk, was portrayed as an alien anti-colonialist radical born in Kenya and secretly set on the destruction of the United States. Republican media inundated their listeners with propaganda and disinformation, convincing the base that liberals and Democrats could never be trusted, and that at heart they were evil, stupid, alien, racist, and traitorous.

These devices were enormously successful: they kept the Reagan coalition together far longer than it perhaps deserved. But these strategies of polarization had an unfortunate side effect: they created and fueled a strongly ideological, angry, anti-elitist Republican base that increasingly despised all compromise with Democrats and liberals, and embraced populist con artists like Newt Gingrich and Rush Limbaugh, who, in turn, paved the way for populist demagogues like Sarah Palin and Donald Trump. Indeed, when John McCain chose the egregiously unqualified Palin as his running mate in order to shore up support with an increasingly angry Republican base, it was a sign that the Grand Old Party had begun to undermine itself.

The same strategies of political polarization led to the procedural roadblocks that hamper Republicans today. Thirty years ago, Senate's filibuster rules and related procedural devices were far less important than they are today. That is because Republicans began using them in the 1990s to hinder and block Bill Clinton. The emergence of the informal Hastert Rule, which limits the kinds of legislation that the House will vote on, is a product of the same era. The practice promotes ideological purity by preventing Republicans from defecting and forming bi-partisan coalitions with liberal Democrats.

Intransigence and obstruction made some sense politically. They helped safeguard against redistribution and new regulations; they also helped Republicans fight the culture wars. Democrats predictably responded during George W. Bush's presidency, most notably, by filibustering a series of circuit court appointments. By the time Barack Obama entered the White House, Senate Majority Leader Mitch McConnell had made political obstruction—and the 60 vote threshold in the Senate—a standard feature of national politics. Moreover, conservative populist ideology—its visceral distrust of elites, and what Stephen Skowronek has called its "perpetual war on the policy state"—made it difficult for Republican politicians to legislate effectively when they finally gained power. They were especially good at blocking, smearing, and blowing things up. They were less well trained for other political tasks.

The political strategies of Republicans during the Reagan regime have been an important cause of the regime's long-term decline. Polarization and populism have produced a politics of stupidity *and* dysfunction, a politics in which a Republican demagogue in the White House oversees a Republican-controlled Congress that has nevertheless great difficulty enacting its agenda.

It still remains likely that Republicans will conveniently cast aside their dire warnings about deficits—which resurface whenever Democrats are in power—and pass a budget-busting tax cut for their donors, as they did during George W. Bush's first term. After all, if Congressional Republicans cannot lower taxes for their donor class, they have almost no reason for existing as a party. Beyond this, however, they seem impotent and internally divided.

IV. Political strategies of a dying regime—constrict the electorate, stock up on judges

When regimes sense that they are losing power, they react in predictable ways. They try to increase the voting power of their likely supporters, and they try to decrease the voting power of their likely opponents. This is a central reason for the Republican strategy of vote suppression, which Republicans have justified publicly by specious claims of voter fraud. The real motivation, however, for a host of vote suppression measures—ranging from voter ID laws to moving or closing polling places—is to decrease the effective size of the electorate and make it more friendly to Republicans. A Republican-appointed majority on the U.S. Supreme Court helped matters along by crippling the preclearance provisions of the Voting Rights Act in 2012 in Shelby County v. Holder. Chief Justice Roberts solemnly intoned that things have changed in the South and federal supervision was no longer necessary. Republican state governments, both in and out of the South took this as a cue to restrict the franchise even more.

In addition to constricting the suffrage, a regime in decline will increasingly turn to the federal judiciary to defend its values from its opponents and push its policies through constitutional and statutory interpretation. It is therefore no wonder that the one thing Republicans were able to agree on was the necessity of keeping President Obama from filling Justice Scalia's seat on the Supreme Court. It is also no wonder that Senate Majority Leader Mitch McConnell, the champion of the filibuster and master of political obstruction, was willing to jettison the filibuster for Supreme Court appointments in order to push through Neil Gorsuch's appointment to replace Scalia, and maintain a conservative majority on the Court.

As a regime matures and declines, one of its most important tasks is to stock the federal judiciary with life-tenured judges friendly to the regime's commitments of ideology and interest. Judges can serve as a bulwark to defend the regime's values in the days ahead, using the power of judicial review to protect those commitments when they are threatened.

The modern conservative movement grew to maturity attacking judicial review, which they identified with the liberal decisions of the 1960s and 1970s. Now, in the dog days of the crumbling Reagan regime, many conservatives regard robust judicial review—or judicial engagement, as it is now called—as an important obligation of the federal judiciary.

If we want to understand our current political dysfunction, we have to understand the rise and fall of political regimes.

That is not to deny that Trump is an especially unqualified president, or that he causes plenty of problems all by himself. He has stirred hatreds and brought them to the surface of American politics. He is unable to think seriously about the nation's foreign policy, and must be hemmed in by a bevy of generals. Quite apart from the decay of the Republican Party, Donald Trump is a political menace who should never have been elected. But the reason he was elected owes much to the decay of the Republican Party.

Like many Americans, I would be delighted to remove Trump from the Presidency before his term expires. But he is the symptom and not the cause of our current dysfunction. Removing Trump cannot fix what ails the Republican Party. The angry base it created, the fractious, radicalized party, the demagogic media, the echo chamber of propaganda, will all remain.

Donald Trump is the most obvious symbol—and product—of the decadence of the Reagan regime as it teeters toward its eventual collapse. But even if Donald Trump were to vanish tomorrow, replaced by Mike Pence, Republicans would face many of the same problems they face today. The head stinks, but it sits atop a rotten corpse.

Posted 10:31 AM by JB [link]