Balkinization: Reports of the Reagan Era’s Death Are Greatly Exaggerated

Reports of the Reagan Era’s Death Are Greatly Exaggerated

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Amanda Hollis-Brusky

Taking Back the Constitution is an ambitious book that covers a wide swath of territory in its attempt to explain, critique and offer alternatives to the contemporary Supreme Court and its constitutional agenda. While it treads over fairly well-trodden territory in its critique of the Roberts Court, Originalism, and the conservative counterrevolution more broadly, it takes a more constructive turn towards the end, offering potential alternatives, “possibilities” (ix), and ways of decentering the courts and judges altogether in favor of a more “popular constitutionalism” (243-257).

Scholars and practitioners interested in future directions and possibilities for constitutional law and judicial politics post-Trump will find plenty of fodder for discussion and debate in this book.

In this essay I want to take to task an assertion that is repeated multiple times in Taking Back the Constitution – that the Reagan Revolution and the Reagan constitutional regime is decaying and will soon be replaced by something else. As someone who keeps close tabs on the Federalist Society and the conservative legal movement, this struck me as startling.

All the evidence I can find suggests, to the contrary, that the Reagan Revolution is alive; thriving even. I also suggest that President Trump’s record breaking 200 plus appointments to the federal bench – including two Supreme Court justices – will not be a turning point in the conservative constitutional order. Because of who these nominees are, because of their vetting and ties to the Federalist Society network – an organization that, at its core, was designed to nurture, develop and implement the agenda of the Reagan revolution – I suggest that the Trump administration has, in fact, extended the life-cycle of Reagan-era constitutionalism.

Proclaiming the Death of the Reagan-era Constitutional Regime

Professor Tushnet asserts in the introduction to Taking Back the Constitution that the Reagan constitutional order – the conservative constitutional order that emerged in response to the Warren Court and which grew up with and around the Reagan presidency – has already started to break down: “As constitutional orders do, the Reagan order began to decay, in part through political blunders by George W. Bush” (viii).

Curiously, Tushnet does not explain what evidence exists for this “decay” or what “political blunders” Bush II committed to expedite the death of the Reagan order. He then goes on to assert that the Trump presidency itself demonstrates that we are at some kind of “inflection point” and that we are on the brink of a new constitutional order: “Either conservative constitutional law will reconstruct itself along new lines, or it will be replaced by a progressive alternative that is as yet unclear” (ix).

The claim is largely dropped for most of the book. After all, Tushnet need not make this claim at all to either a) critique the Roberts Court and Republican jurisprudence; b) offer progressive alternatives. The claim is, at best, orthogonal to his project. Yet, it reemerges again at the beginning of Part Two – “The Reagan constitutional order appears to have exhausted itself with nothing to replace it” (109) – again at the beginning of Part Three – “The interregnum between the end of the Reagan revolution and the emergence of its successor might be extended for another few years” (189) – and again it sneaks in during Tushnet’s discussion of popular constitutionalism – “All occurred when the Reagan constitutional order appeared to be on its last legs, with something new likely to arrive between 2016 and 2025” (256).

I’m not sure if the confidence with which Professor Tushnet proclaims the impending death of the Reagan-era constitutional order has more to do with time itself – constitutional orders can only last, say, thirty or forty years before they inevitably die off – or if it has more to do with the impact he believes Trump and Trump’s politics will have on the jurisprudence and constitutional vision of his 200 plus judicial nominees. Either way, it’s not explained in Taking Back the Constitution.

Whatever his reasons for believing this, I suggest that there is ample evidence that the Reagan revolution is alive and well on the federal bench. Moreover, while we might expect conservative jurisprudence to take on a bit of a Trumpian flavor – let’s say, with an increased emphasis on permitting immigration restrictions – the project of conservative jurisprudence remains firmly rooted in the ideas, the agenda and the people of the Reagan revolution.

The Reagan-era roots of “the Trump constitutional order”

In the preface to Taking Back the Constitution Professor Tushnet describes what a future (imminent future?) “Trump constitutional order” might look like:

The characteristic institutions of the Trump constitutional order would likely involve the deconstruction of the administrative state; its characteristic ideology is economic and social nationalism; and its characteristic policies are tariffs and immigration restrictions (ix).

I admit I don’t see how a constitutional ideology of “economic and social nationalism” would play out in the courts as currently constituted. If anything, the resurrect Lochner school of “judicial engagement”[1] would seem to want to return us to an era of laissez-faire economics rather than embrace and judicially sanction economic protectionism. Moreover, “social nationalism” reads to me like FDR-era socialism. Maybe what Professor Tushnet meant to describe was “ethnic nationalism”[2] which would resonate both with Trump’s anti-immigrant nationalist politics and with the three decades-long arc on the Supreme Court to move from color-conscious remedies to a “color-blind constitutionalism.” But I’ll leave both of those aside for a moment and hew more closely to what I know best.

To that end, I want to address the first pillar of this so-called “Trump constitutional order” – the “deconstruction of the administrative state.” Professor Tushnet spends a good amount of time examining the deconstruction of the administrative state (pp. 147-163). He refers to this as Trump advisor “[Steve] Bannon’s project” (163). But anyone who has studied the Reagan era, even in passing, will recognize that the “deconstruction of the administrative state” was one of the primary concerns of the Reagan administration. It was one of the key motivating factors for the organization of the conservative legal movement itself and for the founding of the Federalist Society for Law and Public Policy Studies.[3]

As I and others have shown in previous scholarship, the Reagan administration’s preoccupation with dismantling the administrative state has been documented through primary accounts and interviews with Reagan era lawyers,[4] archival evidence from the Reagan Library and Office of Legal Counsel memos[5] and – perhaps most persuasively – is laid out coherently in two documents from the Reagan Justice’s Office of Legal Policy: The Constitution in the Year 2000 and Guidelines in Constitutional Litigation.[6]

There, in plain sight, Reagan justice department lawyers laid the legal groundwork – or as I say the “intellectual capital” – for dismantling the administrative state, and outlined their agenda for how it could happen over the next few decades. In his book, Professor Tushnet examines two principal theories conservatives have deployed and will continue to deploy to unravel the administrative state: the unitary executive theory and the non-delegation doctrine. As I have shown, both of these theories were nurtured and developed in the Reagan administration as part of their longer term agenda to take back control of the law.[7]

Speaking of hiding in plain sight, the two “leading academic conservatives” Professor Tushnet cites to illustrate how “Bannon’s” political program to “deconstruct[] the administrative state” is translated into a legal or constitutional agenda, are in fact two Reagan era alumni who also happen to be law professors and the co-founders of the Federalist Society for Law and Public Policy Studies: Steven Calabresi and Gary Lawson.[8]

Perhaps the Reagan-era roots of “Bannon’s” political program should not surprise us. Various accounts have documented Bannon’s long-time admiration of Ronald Reagan.[9] But it bears repeating that the deconstruction of the administrative state is a quintessentially Reagan era agenda item. This fact is important because it seriously calls into question Professor Tushnet’s proclamation of the Reagan constitutional regime’s impending death or even decay.

That being said, Trump’s presidency has played a role in helping to extend that revolution. It is a good bet that the 200 appointments Trump has made to the federal bench, for reasons I describe below, will have the effect of extending core aspects of the Reagan constitutional order further and deeper into the next few decades. We can see the Supreme Court’s recent ruling in Seila Law as part of this agenda; a blow to independent agencies nearly forty years in the making.[10]

Immigration as the hallmark of Trump-era constitutionalism?

Professor Tushnet suggests one area that was not of particular concern to the Reagan revolutionaries; an issue that could be fairly understood as quintessentially Trump – immigration.

With the exception of the recently-issued ruling preventing the dismantling of the Deferred Action for Childhood Arrival program, the five conservative Justices on the Supreme Court have been agreeable accomplices to Trump’s anti-immigration political agenda. From greenlighting the infamous “Moslem Ban” (or travel ban) in Trump v. Hawaii to approving plans to redirect Pentagon funds for the southern border wall, to giving a stamp of approval for a variety of new restrictions for asylum and green card seekers, the Supreme Court has been a powerful “enable[r]” of Trump’s anti-immigrant agenda.[11]

Immigration (or rather anti-immigration) was not a chief concern of President Ronald Reagan. In fact, Reagan’s singular achievement with regards to immigration involved granting asylum to 2.9 million immigrants who had entered the country illegally.[12] That being said, it is important to note how Reagan-era intellectual capital developed in service of building a robust executive branch free from congressional (and judicial) oversight has benefitted the Trump administration in these immigration cases.

The true test of whether immigration will become a hallmark of a new, so-called “Trump constitutional order” will be if these cases continue after this administration is out of power. Will entrepreneurial litigators go on the offensive and continue to push an anti-immigrant agenda through the courts after Trump is out of office? If so, how far will courts be willing to extend the unitary executive theory in order to accommodate this agenda?

Why the Reagan-era constitutional order resists “decay”

Maybe Professor Tushnet is correct in his assumption that constitutional orders typically decay or die off after thirty or forty years, replaced by the vision and values of the next dominant political regime. Maybe this is how “judicial time” (ix) usually works, to borrow has adaptation of a concept deployed in the American political development literature.

But perhaps the reason we are not seeing the decay or decline of the Reagan revolution is precisely because of the existence of a powerful organization dedicated to the maintenance of these ideas and of this agenda. As has been well-documented, the Federalist Society for Law and Public Policy Studies grew up alongside of and developed its core and guiding ideology inside of the Reagan administration.[13]

As it has matured and extended its reach into all levels of the legal profession, the Federalist Society has also extended the influence of the Reagan administration and its ideas by training and socializing new generations of law students and lawyers under this dominant constitutional ideology. The Federalist Society’s core leadership – many of whom were the same “young Turks” of the Reagan administration whom Charles Fried described in his memoir[14] – have acted as gatekeepers, defining what is in-bounds in terms of acceptable conservative legal ideology and marginalizing ideas and actors it considers to be “off-the-wall.”[15] This, in turn, goes some way towards explaining why the conservative Christian legal movement, a movement that has seen itself as outsiders and has been marginalized within the Federalist Society since the beginning, has had such a hard time making in-roads despite the overwhelming electoral and political support this group has shown for the GOP.[16] As Steven Teles, Ann Southworth and I have all documented empirically, the conservative legal movement has and continues to have a distinctly libertarian, deregulatory, pro-business bent despite the inroads conservative Christians have made within the GOP politically.[17]

Because, as I write in Ideas With Consequences, the Federalist Society has “a de facto monopoly on the credentialing of rising stars”[18] on the legal right, only those who are known to and groomed by the Federalist Society network are tapped for legal positions within the GOP administration and for federal judgeships. The Federalist Society’s leading role in judicial appointments accelerated with the George W. Bush administration and now, with the Trump administration, the Federalist Society has “in-sourced” judicial nominations, to borrow an oft-quoted and repeated bold admission from Don McGahn, Federalist Society member and Trump’s former White House counsel.[19] Without repeating in painstaking detail what academics and journalists alike have documented and now know, it’s important to recognize that Trump judges are Federalist Society judges.[20] And Federalist Society judges, by and large, belong to the Reagan constitutional order.

Seen through this lens, perhaps the Federalist Society’s singular achievement has been in figuring out how to thwart the decay of the constitutional order that they helped construct; an order that also helped to construct them.

Amanda Hollis-Brusky | Associate Professor of Politics, Pomona College

amanda.hollis-brusky@pomona.edu | Twitter: @HollisBrusky

[1] See, e.g., Randy Barnett, Our Republican Constitution Princeton University Press (2004); David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform University of Chicago Press (2012).

[2] For the differences between “social nationalism” and “ethnic nationalism” see James J. Kellas, The Politics of Nationalism and Ethnicity. Macmillian (1991). Retrieved from https://link.springer.com/chapter/10.1007%2F978-1-349-21527-0_5

[3] See generally, Steven Teles, The Rise of the Conservative Legal Movement. Princeton University Press (2008) and Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. Oxford University Press (2015, 2019).

[4] Steven Teles, “Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment.” Studies in American Political Development. Vol 23, Issue 1 (2009): 61-83.

[5] Amanda Hollis-Brusky, “Helping Ideas Have Consequences: Political and Intellectual Investment in the Unitary Executive Theory, 1981-2000. Denver University Law Review. Vol. 89(1): 197-244.

[6] Dawn E. Johnsen, Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change, 78 IND. L.J. 363, 389, 397 (2008).

[7] Non delegation doctrine see Hollis-Brusky dissertation; for unitary executive theory see Hollis-Brusky 2011

[8] Tushnet at 147 Citing Steven G. Calabresi & Gary Lawson, “The Depravity of the 1930s and the Modern Administrative State,” Notre Dame Law Review 94 (Dec. 2018): 821-66.

[9] See, e.g., Matt Pearce. “Stephen Bannon found inspiration in ancient thinkers, Ronald Reagan and Nazi propaganda.” Los Angeles Times. December 9, 2016 (retrieved from https://www.latimes.com/nation/la-na-bannon-influences-20161209-story.html).

[10] Compare Seila Law with The Constitution in the Year 2000 at 180 (“The ‘unitary Executive’ principle of Article II also provides a basis to question the viability of ‘independent’ agencies in their present form. The Court could take a Madisonian view that, because the Constitution vests all executive power in a President, Congress may not give executive power to agencies that are not under the President’s control. Under this approach, the Court could find that the ‘independent’ agencies do not have a place in the constitutional structure, and require that they be reorganized with their powers reassigned to the respective branches of government”)

[11] See Joan Biskupic, “How the Supreme Court has enabled Trump on immigration.” CNN Politics. April 24, 2020. Retrieved from https://www.cnn.com/2020/04/24/politics/trump-supreme-court-immigration-daca-green-cards/index.html (accessed July 6, 2020)

[12]See “A Reagan Legacy: Amnesty for Illegal Immigrants.” All Things Considered. NPR. July 4, 2010. Retrieved from https://www.npr.org/templates/story/story.php?storyId=128303672 (accessed July 6, 2020).

[13] See Hollis-Brusky, “Helping Ideas Have Consequences.” Supra note 5 and Teles “Transformative Bureaucracy” supra note 4.

[14] Charles Fried, Order and Law: Arguing the Reagan Revolution. Simon and Schuster (1991).

[15] On how legal arguments move from being “off-the-wall” to acceptable legal craft see Jack M. Balkin and Sanford Levinson, “Understanding the Constitutional Revolution,” Virginia Law Review 87 (2001): 1045. For the role the Federalist Society plays as gatekeepers of acceptable or mainstream conservative legal ideas see, generally Teles 2008, supra note 3 and Hollis-Brusky 2015, supra note 3.

[16] See Amanda Hollis-Brusky and Joshua Wilson, Separate But Faithful: The Christian Right’s Radical Struggle to Transform Law and Legal Culture. Oxford University Press: October 2020.

[17] On the libertarian-leaning core of the conservative legal movement see Teles 2008, supra note 3. On the continuing divisions between the secular and Christian conservative legal movements see Hollis-Brusky & Wilson 2020, supra note 16, and Ann Southworth, Lawyers of the Right: Professionalizing the Conservative Coalition University of Chicago Press: 2008.

[18] See Hollis-Brusky, Ideas with Consequences, supra note 3 at 152 and, more generally, 152-155.

[19] See, e.g., Lydia Wheeler. “White House lawyer: ‘Completely false’ that Trump outsources judicial selections. The Hill. November 17, 2017 (“White House counsel Donald McGahn on Friday blasted as ‘completely false’ the criticism that President Trump has outsourced his judicial selection process to the conservative Federalist Society. ‘I’ve been a member of the Federalist Society since law school. Still am, so frankly it seems like it’s been in-sourced,’ he said, drawing laughs at the National Lawyers Convention, an annual event hosted by the group”). Retrieved from https://thehill.com/regulation/360981-white-house-lawyer-completely-false-that-trump-outsources-judicial-selections (accessed July 9, 2020).

[20] For a great multimedia short doc (featuring yours truly) of the role the Federalist Society and Leonard Leo have played in the current administration, see Dalton Bennett, Jesse Mesner-Hage, Jorge Robas, “Pathways to Power: The Conservative movement transforming America’s courts.” The Washington Post. May 21,2019. Available at https://www.washingtonpost.com/video/national/pathways-to-power-the-conservative-movement-transforming-americas-courts/2019/05/21/e1465572-549f-466d-9c09-9bafc1665a71_video.html.

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