an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In my last post, I discussed how we should think about the Obama presidency from the standpoint of cycles of presidential leadership. In this post I consider the possibilities for a Trump administration.
Some readers of this blog will recoil at the very question. Trump seems so unlike any previous president, so anomalous, so ignorant, so pathological, so dangerous--that an analysis designed for run-of-the-mill presidents seems beside the point. Why ask about cycles of presidential leadership when the leader in question threatens to become another Berlusconi, another Peron, another Mussolini, or (shudder) worse?
But please bear with me for a moment. I will try to factor these concerns into what I am about to say.
Trump is a Republican who takes office during the Reagan regime. Following Stephen Skowronek's analysis in The Politics that Presidents Make, Trump may have inherited one of four possible political situations: (1) a politics of reconstruction, which seeks to create a new political regime through repudiating the old (Reagan) regime; (2) a politics of affiliation with the existing regime, which seeks to return to and maintain party orthodoxy while attempting to keep the regime's coalition together; (3) a politics of preemption, which seeks to find a space for opposition within a still resilient regime; and (4) a politics of disjunction, which tries to repair and reform a decrepit regime that has lost its legitimacy, but fails in the attempt, and therefore results in the dissolution and fall of the regime.
Which kind of politics best describes Trump's current situation? Or put another way, what opportunities for leadership are plausibly open to him?
First, Trump might be a preemptive president. This is very unlikely, because preemptive presidents are members of opposition parties who try to swim against the tides of an existing and still robust regime. If, as I have just argued in my previous post, Barack Obama is a preemptive president, a Democrat who tried to find political cover in a still powerful Reaganite regime, Donald Trump can't also be one. Trump is now the head of the Republican party who ran as a Republican.
The politics of preemption don't really fit Trump's situation.
Second, Trump might prove to be an orthodox Reaganite like George H.W. Bush and George W. Bush. This makes him what Skowronek calls an affiliated president. In this scenario, Trump's central problem is to maintain Reaganite orthodoxy while innovating to meet changed conditions, while keeping all of the factions of his party content with his leadership.
This scenario is more plausible but also unlikely. Trump has a deeply ambivalent relationship to Reagan's regime, to the tenets of limited government conservatism, and to the Republican establishment.
On the one hand, his central campaign slogan, Make America Great Again, is taken from Reagan (and later quietly trademarked by Trump in anticipation of his presidential campaign). He has also given lip service to the concerns of the religious right, announced that he is pro-life, and promised to appoint Scalia-like judges to the federal judiciary. Finally, like most pro-business Republicans, he has called for reduction in government regulations and has announced a tax plan that would lower taxes on the wealthy.
On the other hand, Trump has rejected Republican orthodoxy in countless ways-- in his rejection of free trade, in his defense of middle class entitlements like Social Security and Medicare, in his call for huge public works and infrastructure projects, in his criticisms of George W. Bush's hawkish foreign policy, and in going so far as to blame George W. Bush for failing to prevent the 9/11 terrorist attacks. It is hard to imagine an orthodox Reaganite Republican taking these positions. Trump and his campaign manager Steve Bannon have also declared war on the Republican establishment, as well as on any number of conservative intellectuals. Trump has argued that Republicans and Democrats alike have betrayed ordinary Americans, that both parties are captured by globalist financiers, and that the Republican establishment is no friend of the ordinary working person.
We can therefore reject the idea that Trump will be an affiliated president.
Third, Trump might repudiate Reaganism and create a new political/constitutional regime, based in the Republican party but largely opposed to Republican orthodoxy as it has previously been understood. This would make him a reconstructive president; he would begin a new political constitutional regime of Trump-ism.
There is some evidence for this scenario. Trump did run as an outsider, who called for ordinary Americans to oppose the elites in both parties. Many of his positions are quite unorthodox for a Reagan-era Republican. He is not beholden, as other Republicans are, to the party; quite the contrary, he has taken over the party and Republicans are now beholden to him.
If you worry that Trump is the next Mussolini, or that he is bringing a new kind of authoritarian dictatorship to the United States, this scenario would be your greatest fear. In this story, Reaganism is actually exhausted and ready to be replaced. The Republican Party, despite holding both Houses of Congress and controlling most state governments, is actually on the ropes and faces a severe crisis of political legitimacy. Trump will take the burnt-out shell of the Republican Party and infuse it with a new set of values and a fresh warrant for authority. He and his Trumpist successors will then rule America for decades to come.
Such a transformation would require that the rank and file of the Republican Party, and the vast majority of Republican political leaders, will have to fall in line and be willing to be led in a new direction. However, the argument goes, this has become possible because of the extreme polarization of contemporary American politics.
Polarization helps explain the unthinkable. Many of my colleagues are completely mystified about how Republican voters could support such an obviously terrible and unqualified candidate. But many Republican voters these days don't trust Democratic politicians at all. Years of polarized politics and media messaging have rendered them deeply mistrustful and, indeed, fearful, of anyone with a (D) after their name. They reason that although Trump is an unqualified son of a bitch, at least he is their unqualified son of a bitch. He may be a sinner, but he is not the anti-Christ. Meanwhile, Republican politicians will figure that if they hang together and support Trump, they will continue to exercise power nationally and locally, and they will control the federal judiciary for a very long time. What we have, in short, is a fear of Democratic politicians too great for many voters to resist, and a temptation for power too great for many Republican politicians to resist.
This scenario is a genuine possibility. There is plenty of evidence for it, and one cannot reject it out of hand.
But there is something about this scenario that doesn't quite fit either. Generally speaking, presidents who successfully come into office as repudiators of the existing regime are usually from a new or opposition party, and they also usually bring with them allies in Congress from the new or opposition party. Jefferson's election is accompanied by the election of his allies in Congress; Lincoln's election in 1860 was preceded by two elections that brought many members of his new political party into Congress; FDR's election brings new Democrats. Often, but not always, the new or opposition party also wins control of one or both houses of Congress. That's what happened in 1800, in 1860, and in 1932; and in 1980 the Republicans won the Senate.
The 2016 election is somewhat different in this respect. Trump ran as a Republican, and Republicans controlled both houses of Congress before the 2016 election and they will continue to control both houses after the election. Trump is not bringing with him a wave of new legislative allies who self-consciously ran as Trumpians to repudiate Reaganism and take over the next Congress. Rather, the Republicans who already control Congress seem to be welcoming the possibility of one-party rule. They think that Trump is one of them, or at least they seem to countenance the possibility that he is one of them.
Another factor that suggests that Trump is not poised for a transformative presidency is that he did not win the popular vote in the 2016 election. It looks as if Clinton will win the popular vote by somewhere between 1.5 and 2 percent of the vote. Since the 1824 election (when we start to have popular vote figures) reconstructive presidents have always won at least a plurality of the vote and usually an outright majority. Trump did neither. This is important because it undercuts the claim that Trump has a mandate for revolutionary change. American Presidents who failed to win even a plurality of the vote include John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), and George W. Bush (2000). This is not a group of particularly successful presidents, and of this group, only Bush even won a second term. It's also worth noting that Trump is one of the most unpopular people ever elected to the White House, and according to the 2016 exit polls, only 37 percent of voters even think he is qualified for the office.
For these reasons, I think that Trump is unlikely to be a transformational president. Nevertheless, because his rise to power was so unique, and because he campaigned as a demagogue, we cannot discount the possibility.
Given the history of American politics, however, there is still another possibility that I think is more likely to occur.
The fourth possibility is that Trump, elected as a Republican at a moment when the Reagan regime is advanced in age and greatly weakened, faces a politics of disjunction. As his campaign slogan attests, Trump is trying to make America great again. The Reagan regime is weakened and its legitimacy has been called into question. He is trying to revive the Reagan regime by reconfiguring both the regime and the Republican Party, introducing new elements and discarding others. The problem is that he faces insurmountable odds that would overwhelm even the most talented politician, much less a neophyte with no political experience.