Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List 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 Rahman sabeel.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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts What Kind of President will Trump Become?, Part II-- Donald Trump and the Politics of Disjunction
|
Monday, November 14, 2016
What Kind of President will Trump Become?, Part II-- Donald Trump and the Politics of Disjunction
JB In my last post, I considered the possibility that Donald Trump's presidency might be reconstructive and repudiationist. He might be attempting to construct a new political regime that simultaneously takes over the Republican Party and repudiates Reaganism. Although we can't discount this possibility, I also argued that it doesn't seem to explain the facts. It doesn't explain Trump's embrace of many aspects of the Reaganite Republican agenda (pro-life, low taxes, pro-business, anti-environmental, anti-regulation, opposed to "political correctness") that are stapled onto unorthodox positions on trade and immigration. Trump doesn't seem to be repudiating Reaganism so much as trying to fix it and push it in a more populist direction. If I'm right about this, then Trump is not a reconstructive president at all. He doesn't represent the beginning of a new political and constitutional regime. He's not repudiating the Reagan regime--at most he is repudiating liberal Democrats like Barack Obama and Bill Clinton who were in opposition to the regime. Rather, the best way of describing his presidency is what Stephen Skowronek calls the politics of disjunction. If Trump is a disjunctive president, he is the last Reaganite, not the first Trumpist. What do we mean by a politics of disjunction? And what does it have to do with where we find ourselves today? Recall the basic idea: Presidents opportunities for political action are shaped by what previous presidents have done. They operate in "political time." At the beginning of each cycle, a new regime organized around a dominant political party replaces an older exhausted regime, and a new political coalition emerges, led by the dominant party and its presidents. (As examples, think of the elections of 1800, 1828, 1860, 1932, and 1980). The new coalition claims that it has decisively rejected the perceived failures and outmoded values of the past regime, and it dedicates itself to a new ideology, to a new set of political values, and a new set of political interests. Each successive president in the dominant party tries to keep faith with the regime and its commitments of interest and ideology in the face of ever-changing circumstances and new challenges. Over time, this task becomes increasingly difficult. The coalition fragments. People within the coalition emphasize different issues (e.g., pro-life versus lower taxes versus national security), and new fights break out within the party about issues that weren't particularly central to the regime's commitments at the outset (e.g., immigration). Factions form, and the dominant party's ideological commitments seem increasingly irrelevant to solving today's problems. Demographic changes make the party less attractive to new voters. The party is hobbled by policy failures, scandals, and infighting. It gradually loses legitimacy in the eyes of the public. As Julia Azari puts it, "The different factions in the party can no longer be reconciled [with each other], and the priorities of powerful voices within the party can no longer be reconciled with the national mood and its policy imperatives." Late in the life cycle of an old regime, political leaders emerge who seek to reinvigorate a regime that is nearing collapse; they try to give it a new shot of legitimacy. These leaders operate in what Skowronek calls a politics of "disjunction." (The word "disjunction" means that things lack connection to each other.) Why disjunction? Well, as time goes on, there's a sort of "regime drift"-- leaders take a variety of new positions that weren't in the original package. Skowronek explains that "one of the great ironies of the politics of disjunction is that the presidents who come to office in these sorts of situations tend to have only the most tenuous relationship to the establishments they represent. Long-festering problems within the regime tend to throw up leaders only nominally affiliated with it, and in their efforts to address the issues of the day, these affiliates often press major departures of their own from the standard formulas and priorities set in the old agenda. The political effect of these departures is disjunctive: they sever the political moorings of the old regime and cast it adrift without anchor or orientation." (The Politics that Presidents Make, p. 40.) How does a disjunctive president try to invigorate an old regime? These leaders take unorthodox positions designed to repair increasingly serious breaches within the party. Suppose, for example, that the Republican party includes a coalition of wealthy individuals and businesses on the one hand; and working class whites on the other. These two parts of the coalition find their interests increasingly at odds in an era of globalization. The wealthy have profited handsomely, while the white working class feel left out and increasingly screwed over. To paper over the differences, a presidential candidate like Trump might craft a shrewd mixture of orthodox and unorthodox positions. For example, he might break with the party on trade and immigration while doubling down on white identity politics and objections to political correctness-- a move which, incidentally, meshes pretty well with a stance opposed to immigration and in favor of getting tough with terrorists. This selective embrace of unorthodox positions gives a candidate like Trump the space to continue to support the interests of wealthy supporters on other issues like lowering taxes and opposing business regulations. He offers something to different parts of a coalition that find themselves increasingly at odds with each other. (In like fashion, Jimmy Carter presented himself in the 1970s as an outsider who could bridge the increasing gulf between different parts of the New Deal coalition. He was a moderately conservative pro-life Southerner who was also a racial liberal.) This strategy of making significant (but selective) breaks with party orthodoxy might be difficult for many establishment Republican politicians to manage. However, because Trump portrayed himself as an outsider (and someone who had only recently become a member of the party), it was easier for him to get away with it. In fact, although his primary opponents repeatedly complained that Trump wasn't really a Republican at all, it has been enormously to Trump's advantage that he is largely unaffiliated with the Republican establishment. It gave him credibility with white working class voters and allowed him simultaneously to run against the Republican establishment in certain respects (immigration, trade) while embracing its ideology and interests in other respects (taxes, regulation, judicial appointments). A second feature of disjunctive politics also applies to Trump. As differences within the coalition become increasingly obvious and difficult to manage, disjunctive candidates argue that they are able to fix things because they have special technical abilities. For example, they might portray themselves as extremely skilled politicians (John Quincy Adams, James Buchanan), outstanding technocrats and problem solvers (Herbert Hoover, Jimmy Carter); or, as in Trump's case, outstanding deal makers. They explain to the public that what is important is not ideological purity but the ability to get things done. In like fashion, Trump has used his image as a successful businessman who is good at making deals to assuage different parts of the Republican coalition. As Skowronek puts it, in the last days of a regime, mastery of technique-- in this case deal making and business acumen-- "is a hallmark of the politics of disjunction." (TPTPM, p. 40). Focusing on technique allows the new president to remain ambiguous about what he or she stands for. This allows each side of the coalition to believe that it will get what it wants from the new presidency. Unfortunately, the politics of disjunction presents an gauntlet that is close to impossible to traverse successfully. Disjunctive presidents are caught between the demands of increasingly antagonistic factions, whom they cannot all please simultaneously. Technique is not enough to keep the coalition together or maintain its legitimacy. Being a great deal maker, for example, is not enough if people don't like the deals, or if they come to believe that you have sold them out. One of the strongest pieces of evidence we have that Trump is facing a politics of disjunction is that the Republican Party was already in the midst of a civil war when he emerged on the scene. The fight between Tea Party and establishment Republicans eventually led to a debt ceiling crisis, a government shutdown, the defeat of the House Majority Leader and the resignation of the Speaker of the House. Trump's entry into Republican politics didn't seem to resolve that conflict; rather, it simply added a new group of combatants to the mix. The Republican Party's civil war seems to have mutated, not ended, as a result of his candidacy. If Trump turns out to be a disjunctive president, he is probably not going to be the next Mussolini. Rather, he will turn out to be an unsuccessful president, like Herbert Hoover or Jimmy Carter. He will prove ineffectual despite the fact that, as in Carter's and Hoover's case, he entered the presidency with his party controlling both houses of Congress. One of the remarkable (and often forgotten) features of Carter's presidency, for example, is that post-Watergate, the Democrats seemed to hold all the cards politically. Yet within four years, everything fell apart for them, and they began their long period in the wilderness. Hoover also entered the White House in a period of one-party rule (indeed, the Republicans had controlled all branches of government from 1921 to 1930). But Hoover had the misfortune to serve as President during the beginning of the Great Depression. If Trump turns out to be a disjunctive president, we should not expect that he will last more than one term in office. He may face serious internal challenges within his own party. Elements of his party may even try to impeach him and replace him with his vice-president, Mike Pence, who is a more traditional Reagan conservative. Trump may face a challenger inside his own party when he seeks reelection; or, for reasons of unpopularity, or poor health (he is 70 years old) he may not even run for a second term. Moreover, if Trump is a disjunctive president, his party will probably lose to the opposition party (most likely the Democrats) in the 2020 presidential election. This will clear the path for a new political regime in which the opposition constitutes the new dominant party. Barack Obama will have taken the Democrats to the mountain, but it will be the next Democratic president who will lead them to the political Promised Land. All this sounds great if you're a liberal Democrat. But don't get your hopes up too fast. Consider these four caveats: (1) Skowronek's model of presidential leadership may simply not apply to the present situation because Trump is such a different candidate than any we have seen before. If Trump becomes a dictator, you can throw away the whole analysis; all bets are off. (2) There is a big difference between Trump and other disjunctive presidents like Hoover and Carter. Each of them ran as a technocrat and pragmatic problem solver. Trump ran as a demagogue. We have no previous examples of out-and-out demagogues gaining the White House in American history. Therefore we can't be certain of their fate. On the one hand, winning as a demagogue may make things worse for Trump once he tries to actually govern-- it may exacerbate his problems with his fellow Republicans. On the other hand, it make things better for him, for example, if he is able to establish a cult of personality and unify the warring factions of his party. (3) As I noted earlier, Trump may actually be a reconstructive president, not a disjunctive president. He may turn out to be a particularly successful demagogue. In that case, we are in for a much lengthier--and scarier--period of Trumpian rule. (4) Even if Trump is a disjunctive president, disjunctive presidencies are not happy times for the country. Lots of people suffer; indeed, the entire country suffers. Even if things eventually get better, the damage is done. The examples of John Quincy Adams and Jimmy Carter involve relatively peaceful (if unpleasant) transitions from the old regime to the new regime. The examples of Herbert Hoover (The Great Depression) and James Buchanan (The Civil War) are cautionary tales about how badly disjunctive presidents can screw things up in four year's time. When the country is so seriously polarized, and trust in government and elite institutions is so low, there is always the danger that political disagreements may turn violent. Or the country may face a constitutional crisis. Or both. How will we know whether Trump is a disjunctive president or is a reconstructive president who is about to establish a new Trumpian regime? We really won't know for some time. But the central difference is that in reconstructive presidencies, the new leader unites an energized party around a common set of values, interests, and agendas that overwhelms the political opposition. In a disjunctive presidency, the new leader can't keep his party's coalition together and so it is every person for him or herself. This lack of unity allows the opposition party to grow stronger and enables the opposition to seize the political agenda in the next election. (Again, think of the period between 1976 and 1980, or between 1824 and 1828). You may be wondering how much protests from the opposition matter to this story. Surely they do, but reconstructive presidents are also bitterly opposed by the party in opposition. (One might recall how Democrats felt about Reagan during his time in office.) So the strength of opposition doesn't by itself tell us whether we have a disjunctive or reconstructive presidency. Perhaps more important is that the disjunctive leader is often threatened by challengers within his own party who try to undermine him and stab him in the back. To be sure, presidents always face challenges within their own party for leadership--but reconstructive presidents are able to beat back these challenges rather easily, while disjunctive leaders are not. Therefore, if we want to understand the likely future of the Trump presidency, we might look for signs that tell us whether the Republican coalition is holding together--and even getting a fresh burst of political energy--or is splitting apart. That is, the central question to consider in the next few years is whether Trump peacefully ends the Republican civil war or ends up becoming a casualty of it. First, we might look for evidence of whether the Republican coalition is able to unite around Trump or continues to be riven by faction. Second, we might look for evidence of whether Trump is able to work effectively with a Republican-controlled House and Senate, or whether, as in Carter's presidency, factionalism interferes with legislative progress despite one-party rule. Third, we might look for evidence that serious challengers to Trump have arisen within his own party and are trying to neutralize him, replace him, or otherwise take him down. The most recent example of this phenomenon was Teddy Kennedy's attempt to displace Jimmy Carter as the leader of the Democratic Party. Finally, we should consider how well Trump responds to serious crises that inevitably occur in a president's four-year term. An energetic and successful response to crisis tends to encourage intra-party unity, thus causing internal competitors to hold back. (For example, George W. Bush's response to the 9/11 terrorist attacks undermined any potential challenges to his authority within his own party.) Energetic and successful response to crisis also tends to dampen the effectiveness of opposition from the other party. (Again, the Democrats' weak response to Bush in the 2002 elections is an example.) If Trump weathers the challenges of his office successfully, he may well win a second term. If not, well, we can't really say we weren't warned. Posted 6:30 AM by JB [link]
|
Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |