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 Rahmansabeel.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
A week after Donald Trump was elected in November 2016, I predicted—using
Stephen Skowronek’s model of cycles of regime politics—that Trump
would turn out to be a disjunctive president. He would preside over the end of
the Reagan regime, just as Jimmy Carter had ushered in the end of the New
Deal/Civil Rights Regime and Herbert Hoover had presided over the end of the
long period of Republican dominance following the Civil War. That was not
because Trump was anything like Hoover or Carter—both honest, intelligent, sober,
and serious-minded men. It was rather because the Reagan regime is in a slow-motion
collapse, a point I made in a speech at B.U. Law School in the fall of 2013 (and published the following year). The Republican
Party, I argued, was in the midst of either a civil war or a nervous breakdown.
a political regime grinds to its conclusion, the dominant party turns to heterodox
outsiders who promise to restore past greatness, but instead find themselves
overmatched by circumstance. They unravel the regime and create an opening for
a new regime led by another political party.
Hoover and Carter, Trump is overmatched by forces beyond his ability to control.
He has not ended the processes of decay; if anything, he has accelerated them.
Trump Administration is now in its eighth month. My analysis remains largely
unchanged, and recent events have only confirmed its basic outlines.
Donald Trump’s Two Tracks
Trump has been unable to pass major legislation even though Republicans control
all three branches of government. Instead, he has operated on two tracks.
First, he has quietly continued to issue deregulatory orders, undermine
environmental protection and labor regulation, while appointing about thirty or
so federal judges, who have been recommended by conservative think tanks and
key figures in the Federalist Society. Operating on this track, Trump is
largely indistinguishable from a very conservative market-oriented Republican
second track is where Trump has gotten the most attention. In this mode, he has
openly and flamboyantly played to his base of supporters through techniques of
cultural warfare and white identity politics. He has engaged in a seemingly
never-ending stream of populist—and occasionally racially inflammatory—actions
and statements. In the process, he has
attacked many of his fellow Republicans. But that is not because he is thinking
of leaving the Republican Party; quite the contrary—he seems already to be
running for reelection. Rather, it is because he is laying claim to control of
the party. Polls indicate that his national support has declined by about a
percentage point a month since his inauguration. Nevertheless, Trump still
remains far more popular than most members of Congress. And as long as he
remains popular among the Republican faithful, it is almost impossible for the
vast majority of Republicans—even those he attacks—to disown him.
the Republican legislative agenda has stalled, Trump has repeatedly turned to the
second track as an overarching political strategy:
Republican effort to repeal Obamacare collapsed in early August. Republicans in
the Senate were unable to agree on a measure— no matter how limited—that would
command even 50 votes. President Trump, predictably, blamed everyone but
himself, and then proceeded to tweet that he would expel transgender persons
from the U.S. Armed forces.
mid-August, neo-Nazi and white supremacist demonstrators descended on
Charlottesville Virginia, ostensibly to protest the removal of a Confederate
statue, but actually to network and assert their growing strength in American
politics (the rally was entitled "Unite the Right"). After violence
erupted between the protesters and counter-protesters, a woman was killed by a
neo-Nazi sympathizer who deliberately ran over pedestrians with his car.
Trump did nothing to defuse the situation. Quite the contrary, he enraged much
of the public by seeming to equate neo-Nazis and white supremacists with the
counter-protesters who organized against them, "condemn[ing] in the
strongest possible terms this egregious display of hatred, bigotry and violence
on many sides, on many sides." Two days later, he angrily responded to
critics in an impromptu statement at Trump Tower by insisting that protesters
on the left were just as much to blame for the violent confrontation as the
neo-Nazis and white Supremacists who organized the rally, pointing out there
were "very fine people on both sides." Presumably, these "very
fine people" included those who carried Nazi swastikas, racist signs and
torches, and shouted slogans like "Jews will not replace us."
idea of people proudly chanting anti-Semitic slogans in the streets is chilling
enough; it is even more chilling that these protesters were grateful to the
President of the United States for changing the political climate in their
Friday August 25, as Hurricane Harvey battered Texas's Gulf Coast, and while public
attention was diverted, Trump issued a formal executive order calling for the
removal of transgender service personnel from the Armed Forces. He also issued
a presidential pardon to former Sheriff Joe Arpaio of Maricopa County, Arizona.
Arpaio had been convicted on federal contempt charges for openly defying a
federal court order to stop racially profiling Latinos suspected of being undocumented
aliens. Prior to the contempt conviction, Arpaio had been notorious for his
race baiting, corruption, incompetence, and inhumane treatment of prisoners.
this point in his Presidency, Trump's political strategy has been reduced to
radical gestures that please his populist base, no matter how much they may
outrage the rest of the country. Indeed, he welcomes the scorn and calumny of
his political opponents: the more outrageous his speech and actions, the more
he signals that he is standing up to the globalists and the elites—and that he
is on the side of the real Americans. In this sense, the Arpaio pardon was less
a dog whistle than an air raid siren.
all of this is the continuing investigation into the relationship between
Trump, his associates, and Russia. As the evidence slowly mounts, Trump acts
more and more like a person who has something to hide, and who knows that the
authorities are getting closer and closer to discovering it.
The real cause of political dysfunction: the
end of the Reagan Regime.
does all of this tell us about constitutional dysfunction? Throughout his
presidency, Trump has had the advantage of Republican majorities in both Houses
of Congress and a Republican majority on the Supreme Court. And yet political
dysfunction at the national level is as bad as the last four years of the Obama
Administration—perhaps even worse.
the end of September, Congressional Republicans must raise the debt ceiling and
appropriate funds to keep the government running. I expect that they will
manage to do both. But the fact that both politicians and markets are
increasingly worried about whether Republicans actually can keep the country
running and prevent the world economy from imploding, is an additional sign of
profound political dysfunction.
people wrote about political dysfunction during the Obama years, they assumed
that a significant cause of dysfunction was divided government combined with
intense political polarization.
that is not the case today. If Trump and his party have been ineffective, it is
not because of divided government. After all, when the Democrats controlled the
White House and both Houses of Congress between 2009 and 2010, they got a great
deal accomplished. Rather, the dysfunction is due to other, deeper causes. Recent
events are additional evidence for my thesis that we are at the end of the
Reagan regime and in the midst of disjunctive presidency.
central reason why Trump is getting nothing done is that the Republican
coalition of the Reagan regime—which currently controls both national and most
state governments—is far weaker than it appears on the surface. Indeed, it has
been slowly disintegrating for some time. Indeed, it is *because* the coalition
is disintegrating that Republican voters turned to a racist demagogue like
decline and fall when their constituent parts factionalize and turn on each
other, and when their agenda becomes irrelevant to the problems that the
country faces. In some cases, the coalition may be the victim of its own
success. Its solutions—and its ideological agenda—may be a cause of the
problems the country faces. The New Deal coalition unraveled in the tumult of
the late 1960s and 1970s; something structurally similar is happening to the
Reagan coalition today.
Reagan coalition came together on a mission to deregulate the economy, shrink
the size of government, and above all lower taxes, especially (as it turned
out) for the wealthy. This formula has proved inadequate to respond to the
social problems of the present, no matter how strong the party seems at
present. In the long run, the disconnect between Republican ideology and public
expectations is unsustainable.
disconnect helps explain the failed attempt to repeal Obamacare. The American
public had gradually come to view access to health care and affordable health
insurance as part of the social contract—something the government should work
to guarantee. This assumes, however, a vision of government deeply at odds with
the ideological assumptions of the Reagan-era Republican Party. It is
especially at odds with the desires and interests of the donor class who
support Republican politicians and drive the party's agenda. Obamacare secured
access to health care through redistribution— it raised taxes on investment
income; and it grew government entitlements— through insurance subsidies and
the expansion of Medicaid. No wonder that Reaganite true believers despised it.
so, Congressional Republicans could not repeal Obamacare because they never
reached a consensus on what to do in light of changed circumstances. They never
reached a consensus because what most of them actually wanted to do was deeply
unpopular—hack away at Medicaid and deregulate the insurance industry in order
to pay for tax cuts for wealthy Americans. What most Congressional Republicans
really wanted, in other words, was yet another version of the Republican
post-1980 policy agenda—to cut entitlements and alleviate fiscal and regulatory
burdens on the donor class. As the saying goes, when all that you have is a
hammer, everything—including your solution to health policy—looks like a nail.
the same time, Republicans—and Trump himself—promised something very different
to the public. They repeatedly blamed Obamacare for raising premiums and
limiting access to health care. They promised that their plan—never fully
specified—would lower premiums, and extend access to health care for more
people. In fact, all of their plans would have done the opposite—leave tens of
millions without health insurance and raise rates for the elderly and the sick.
To keep the Reagan coalition running, in short, Republicans engaged in demagoguery
on the health care issue for years and repeatedly misled the public about what
they would do. Eventually, the piper had to be paid.
emphasize these points because no matter who the Republicans nominated in 2016,
they would have faced this dilemma. It is unlikely that Presidents Ted Cruz,
Marco Rubio, or Jeb Bush could have resolved the central problems facing the
Reagan regime and the Republican coalition. They would have faced a fractious
party with radicalized elements, with each element demanding that things be
done their way or not at all. They would have faced a deep disconnect between
what the public thought it was getting in health care reform and what the donor
class—and therefore Republican politicians—were planning to give them.
apart from Trump's incompetence, the Senate filibuster rules, and the House's
Hastert rule have hampered Republican ambitions. Republicans are forced to pass
legislation with only Republican votes, giving them little room for error, and
making it possible for a small number of Congressmen and Senators to hold up
passage in the service of conflicting and contradictory demands. The Senate's
procedural rules significantly limit the kinds of reforms that Republicans can
pass through reconciliation.
III. He who lives by demagoguery and obstruction shall die by demagoguery and obstruction
emergence of a racist, ignorant demagogue as the political leader of the
Republican Party and the procedural difficulties that Republicans face in the
House and Senate might seem wholly unrelated. But both of them are connected to
the forces that produced the rise and fall of the Reagan regime.
Reagan regime kept itself in power by combining its deregulatory and tax
cutting policies— which primarily favored elite donors—with anti-elitist
rhetoric, white identity politics, and strategies of political polarization.
Republicans repeatedly found cultural wedge issues and symbolic crusades to
anger their base and focus them on issues of culture and white identity.
Republicans created a world in which Democrats were, as Newt Gingrich once said
of Bill Clinton, “the enemy of normal Americans.” Republicans created a world
in which Barack Obama, a neo-liberal policy wonk, was portrayed as an alien
anti-colonialist radical born in Kenya and secretly set on the destruction of the United States.
Republican media inundated their listeners with propaganda and disinformation,
convincing the base that liberals and Democrats could never be trusted, and that
at heart they were evil, stupid, alien, racist, and traitorous.
devices were enormously successful: they kept the Reagan coalition together far
longer than it perhaps deserved. But these strategies of polarization had an
unfortunate side effect: they created and fueled a strongly ideological, angry,
anti-elitist Republican base that increasingly despised all compromise with
Democrats and liberals, and embraced populist con artists like Newt Gingrich
and Rush Limbaugh, who, in turn, paved the way for populist demagogues like
Sarah Palin and Donald Trump. Indeed, when John McCain chose the egregiously
unqualified Palin as his running mate in order to shore up support with an
increasingly angry Republican base, it was a sign that the Grand Old Party had
begun to undermine itself.
same strategies of political polarization led to the procedural roadblocks that
hamper Republicans today. Thirty years ago, Senate's filibuster rules and
related procedural devices were far less important than they are today. That is
because Republicans began using them in the 1990s to hinder and block Bill
Clinton. The emergence of the informal Hastert Rule, which limits the kinds of
legislation that the House will vote on, is a product of the same era. The
practice promotes ideological purity by preventing Republicans from defecting
and forming bi-partisan coalitions with liberal Democrats.
and obstruction made some sense politically. They helped safeguard against
redistribution and new regulations; they also helped Republicans fight the
culture wars. Democrats predictably responded during George W. Bush's
presidency, most notably, by filibustering a series of circuit court
appointments. By the time Barack Obama entered the White House, Senate Majority
Leader Mitch McConnell had made political obstruction—and the 60 vote threshold
in the Senate—a standard feature of national politics. Moreover, conservative populist
ideology—its visceral distrust of elites, and what Stephen Skowronek has called
its "perpetual war on the policy state"—made it difficult for
Republican politicians to legislate effectively when they finally gained power.
They were especially good at blocking, smearing, and blowing things up. They
were less well trained for other political tasks.
political strategies of Republicans during the Reagan regime have been an
important cause of the regime's long-term decline. Polarization and populism
have produced a politics of stupidity *and* dysfunction, a politics in which a
Republican demagogue in the White House oversees a Republican-controlled
Congress that has nevertheless great difficulty enacting its agenda.
still remains likely that Republicans will conveniently cast aside their dire
warnings about deficits—which resurface whenever Democrats are in power—and
pass a budget-busting tax cut for their donors, as they did during George W.
Bush's first term. After all, if Congressional Republicans cannot lower taxes
for their donor class, they have almost no reason for existing as a party. Beyond
this, however, they seem impotent and internally divided.
Political strategies of a dying regime—constrict
the electorate, stock up on judges
regimes sense that they are losing power, they react in predictable ways. They
try to increase the voting power of their likely supporters, and they try to
decrease the voting power of their likely opponents. This is a central reason
for the Republican strategy of vote suppression, which Republicans have
justified publicly by specious claims of voter fraud. The real motivation,
however, for a host of vote suppression measures—ranging from voter ID laws to
moving or closing polling places—is to decrease the effective size of the
electorate and make it more friendly to Republicans. A Republican-appointed
majority on the U.S. Supreme Court helped matters along by crippling the
preclearance provisions of the Voting Rights Act in 2012 in Shelby County v.
Holder. Chief Justice Roberts solemnly intoned that things have changed in the
South and federal supervision was no longer necessary. Republican state
governments, both in and out of the South took this as a cue to restrict the
franchise even more.
addition to constricting the suffrage, a regime in decline will increasingly
turn to the federal judiciary to defend its values from its opponents and push
its policies through constitutional and statutory interpretation. It is therefore no wonder that the one thing
Republicans were able to agree on was the necessity of keeping President Obama
from filling Justice Scalia's seat on the Supreme Court. It is also no wonder
that Senate Majority Leader Mitch McConnell, the champion of the filibuster and
master of political obstruction, was willing to jettison the filibuster for
Supreme Court appointments in order to push through Neil Gorsuch's appointment
to replace Scalia, and maintain a conservative majority on the Court.
As a regime matures and declines, one of its most important tasks is to stock the federal judiciary with life-tenured judges friendly to the regime's commitments of ideology and interest. Judges can serve as a bulwark to defend the regime's values in the days ahead, using the power of judicial review to protect those commitments when they are threatened.
modern conservative movement grew to maturity attacking judicial review, which
they identified with the liberal decisions of the 1960s and 1970s. Now, in the
dog days of the crumbling Reagan regime, many conservatives regard robust
judicial review—or judicial engagement, as it is now called—as an important
obligation of the federal judiciary.
we want to understand our current political dysfunction, we have to understand the
rise and fall of political regimes.
That is not to deny that Trump is an especially unqualified president, or that he causes plenty of problems all by himself. He has stirred
hatreds and brought them to the surface of American politics. He is unable to think seriously about the nation's foreign policy, and must be hemmed in by a bevy
of generals. Quite apart from the decay of the Republican Party, Donald Trump is a political menace who should never have been elected. But the reason he was elected owes much to the decay of the Republican Party.
many Americans, I would be delighted to remove Trump from the Presidency before
his term expires. But he is the symptom and not the cause of our current
dysfunction. Removing Trump cannot fix
what ails the Republican Party. The angry base it created, the fractious,
radicalized party, the demagogic media, the echo chamber of propaganda, will
Donald Trump is the most obvious symbol—and product—of the decadence of the Reagan regime as it teeters toward its eventual collapse. But even if Donald Trump were to vanish tomorrow, replaced by Mike Pence, Republicans would face many of the same problems they face today. The head stinks, but it sits atop a rotten corpse.