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
The United States has a presidential system. That means that once a president is elected, he or she stays in office for four years, barring death, disability, resignation, or impeachment. The 25th Amendment allows for the Vice President and the Cabinet to displace a president who is unable to perform the duties of his or her office, but we have not yet seen that particular mechanism work in operation to determine how well it would operate.
In a parliamentary system, by contrast, a prime minister can be removed from office if he or she loses a vote of no confidence, leading to new elections. Sometimes an internal struggle within the ruling party can force a prime minister to resign even without a new election being held.
Donald Trump's first four weeks in office, capped by his bizarre press conference on Thursday, may lead his opponents to wonder if they are stuck with his antics for four full years. Wouldn't we be better off with a system that allows for votes of no confidence? Sandy Levinson, for one, has argued that we should consider adding such a feature to our Constitution, and in our essay on constitutional dictatorship, Sandy and I discussed how such a system might work.
Trump's example shows the advantages of a system with a vote of no confidence over our current presidential system. Nevertheless, I want to offer a few caveats, particularly as applied to the current situation. The basic problem is that Trump is a very skillful demagogue, and demagogues don't necessarily do badly in parliamentary systems. Votes of no confidence may not work as effectively to stop demagogues as they do to handle leaders who are merely incompetent or who are otherwise disabled.
First, Trump has fervent supporters in heavily conservative Republican districts and states, and the Representatives and Senators in those districts and states know it. They are unlikely to want to bring him down if they believe that they will be punished for doing so by Trump's supporters in the Republican Party. Thus, as a threshold matter, it is by no means clear that Trump would lose a vote of no confidence at this point.
Second, even if Trump lost such a vote of no confidence, he would have a very good shot at winning a second election, further strengthening his hand. That is because electoral districts in the United States are first-past-the-post. Because of the distribution of population in cities and rural areas, and effective gerrymandering, Republicans have a distinct advantage in the House of Representatives. In a parliamentary set up, there are good reasons to think that, following a new election, Republicans would once again be the majority party, and Trump would again become their leader. Winning an election might convince him to double down on his current leadership style and policies. It might make things worse, not better.
One could avoid this result if one not only switched to a parliamentary system, but also changed the rules of electoral representation, for example, by moving to a system of proportional representation. But in a system like Great Britain's, Trump might very well stay in office and become even more powerful than before.
Third, Trump thrives on chaos and he clearly loves campaigning. As a narcissist, he needs constant attention and affirmation, which campaigning gives him. (It is no accident that after winning the election, he held a series of rallies, and that following his current troubles, he has responded by staging yet another rally in Florida.)
Losing a vote of no confidence would just mean that the United States would hold a new national election. This would actually allow Trump to spend less time governing and more time campaigning. It would play to his strengths, not his weaknesses. Trump would be able to stage rally after rally engaging in the same sort of tactics he engaged in during the 2016 election. It would allow him to consolidate his support among his most fervent followers, and might accelerate the tendencies toward authoritarian leadership that have recently emerged in American politics.
The problem we face is that Trump is not simply incompetent. He is a demagogue, and a very skillful demagogue at that. He is especially effective at the sort of symbolic politics and the politics of resentment that characterize contemporary presidential campaigns. Encouraging him to run a series of campaigns does not seem designed to make him weaker, but to make him stronger, while the country's business is left unattended.
Fourth, in a parliamentary system, Trump's government might fall without calling for a new general election. That might happen if he lost a contested leadership election, as happened to Margaret Thatcher. But, as noted above, he would be unlikely to lose such an election as long as the Republican base still adores him, which it apparently does.
This is not to say that our presidential system is perfect. But it has a different way of dealing with demagogues. It hinders them, slows them down, and renders them ineffective. In extreme cases, it can remove them through impeachment. But, as in the case of parliamentary systems, that also requires the leader's party to abandon him. We are not there yet.