Balkinization: Trump's Wild Cards or Is a Constitutional Crisis Brewing?

Trump's Wild Cards or Is a Constitutional Crisis Brewing?

Stephen Griffin

Right now, I see three big wild cards preventing an "ordinary science" or "normalization" approach to studying the forthcoming Trump presidency. All relate to a fourth perspective I should have mentioned in my post on Trump and regime theory. I talked about the ideas of change as order, the federal order versus the national order and whether the policy space will dominate the electoral result.

The fourth perspective is what happens when Trump's populist brand of politics (I'm being polite) meets the permanent government. All of the wild cards relate to this potential conflict. The first is whether Trump will triple down on his insistence that the CIA must be wrong about Russian attempts to interfere with the election. This insistence has brought him into conflict with an agency that, whatever its problems and past issues, has a great deal of credibility in official Washington, including in Congress. The second is Trump's evident determination to maintain ownership of his far-flung businesses during his presidency (including, possibly, projects in Russia). We'll see what Trump says on December 15 [UPDATE-- now apparently pushed off until January -- or perhaps never] about how he will handle his businesses during his presidency, but it seems clear as things stand now that not only does he intend to maintain ownership, but that Republicans are giving him a pass on this issue. Given what we don't know about Trump's holdings, especially overseas, this has the real potential to create all sorts of ethics conflicts and difficult situations within the executive branch, even setting aside the problem posed by the emoluments clause. The third wild card, which won't be played, at least not fully for some time, is what happens when President Trump's appointments, policy measures, and decisions meet public opinion. All presidents are judged, especially within the Beltway, by how popular they are and whether their specific proposals match up with public opinion. Especially given his lack of experience, Trump cannot fully gauge the effect of being unpopular until he actually experiences it. But I think we already know he doesn't like it much.

All of these wild cards are contributing to considerable uncertainty and discord in the run-up to the Trump inauguration. In my book American Constitutionalism: From Theory to Politics I argued that the standard form constitutional crises take in the U.S. is characterized by uncertainty rather than certainty. Our constitutional crises are not characterized by political actors setting themselves against the Constitution as they see it (this stance appeals to few). Rather, operating nominally within the Constitution, political actors feel compelled by events to push beyond accepted constitutional understandings, reaching a state of uncertainty in which guideposts from the past tend to disappear. I think that does capture something of the feeling developing in the U.S. today, although it is unclear whether the situation will wind down rather than escalate. At this point I'm not optimistic, given the significance of the Trump wild cards yet to be played.

Posted 5:49 PM by Stephen Griffin [link]