The Rant of an Institutionalist

It's been a bad week.

Photo by Stephen Radford on Unsplash

It will not surprise long-time readers that to become part of hard-working staff here at Drezner’s World, you have to be a pretty solid institutionalist. Both in my upbringing as an American and in my adulthood as a political scientist, I have learned that useful institutions are difficult to create and worthy of nurturing if they are created. This is particularly true in the United States, which is organized with the express purpose of inculcating pluralist, countervailing institutions, ones in which ambition is made to counteract ambition.

The people leading these institutions are very, very fallible. And yet, between flawed but persistent institutions and disruptions designed to tear everything down and build something new from the ashes, I will take the institutions every day of the week and twice on Sundays. In recent years I have seen so many political “accelerationists” embrace the idea of disruption in the conviction that something new will be better. Even a passing familiarity with the history of social revolutions reveals the absurdity of such claims.

Needless to say, the past week has been a rough one for anyone who has put faith that these institutions will act to check those who wish to gobble up power for themselves.

On Thursday, the worst presidential debate I have witnessed in my lifetime took place, between an illiberal, inveterate liar and an enfeebled 81-year old man who, by even his strongest defenders acknowledge had a horrible night.

The presidential debate, however, paled in significance to recent Supreme Court rulings. On Friday, in Loper Bright Enterprises v. Raimondo, the Supreme Court threw out the precedent of Chevron deference, continuing a long pattern of recent conservative decision-making that ignores stare decisis. With the ruling, courts took a shiv to the administrative state and declared that the courts alone now had the power previously delegated to regulatory agencies. As Kate Shaw explained in the New York Times:

In essence, Chevron deference allowed agencies to use their expertise to determine how to carry out laws passed by Congress — laws intended to keep our air and water clean, our drugs safe and effective and our securities markets protected from fraud and deception.

The Supreme Court has now decreed that it, rather than agencies staffed by individuals with deep subject matter expertise and answerable to presidential appointees, will be the final arbiter of the meaning of every statute passed by Congress.

What does it mean to require agencies to take the “best” or “appropriate” or “feasible” steps to reduce air and water pollution or to keep workplaces safe? While Chevron directed courts to defer to agencies when they brought their expertise to bear on such questions and produced reasonable answers, the court will now decide for itself.

It will do so not armed with decades of experience administering particular laws passed by Congress but with a wooden, formalistic and acontextual approach to reading statutory text — informed by dictionaries and the common law and Latin phrases but not the on-the-ground reality of the problems Congress seeks to address in the statutes it passes.

An error in one of this week’s opinions provided a stark illustration of the costs of the court’s lack of expertise: On Thursday, in the case dealing with the Environmental Protection Agency — Ohio v. E.P.A. — the released version of the majority opinion made five references to “nitrous oxide,” commonly referred to as laughing gas, rather than the “nitrogen oxide” compounds at issue. The error was quickly fixed, but no agency official working on the regulation of this compound would have made such an error — and in many ways that is Chevron’s whole point.

As it turns out, this was a prelude to yesterday’s stunning 6-3 decision in Trump v. United States. Writing for the majority, Chief Justice John Roberts declared that all Trump (as well as other presidents) “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” The ruling goes on to stipulate that examples of core constitutional powers include Trump’s efforts to persuade Mike Pence to not accept the Electoral College results in his capacity as Vice President. The ruling further stated that, “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” This means that Trump’s efforts to pressure DOJ officials into claiming election fraud where none existed are considered to be part of his core constitutional powers.

There is no way to sugarcoat the dangerous implications of this decision. It continues the agglomeration of presidential power at the expense of other countervailing institutions. The New York Times’ Charlie Savage arrives at the same conclusion:

Beyond its immediate implications for the election subversion case against Mr. Trump and the prospect that he may feel less constrained by law if he returns to power, the ruling also adds to the nearly relentless rise of presidential power since the mid-20th century.

It had seemed like a constitutional truism in recent years when more than one lower-court opinion addressing novel legal issues raised by Mr. Trump’s norm-breaking behavior observed that presidents are not kings. But suddenly, they do enjoy a kind of monarchical prerogative.

“The relationship between the president and the people he serves has shifted irrevocably,” Justice Sonia Sotomayor wrote in an outraged dissent joined by the court’s other two liberals. “In every use of official power, the president is now a king above the law.”

The Atlantic’s Adam Serwer is even more unsparing:

Near the top of their sweeping, lawless opinion in Trump v. United States, Donald Trump’s defenders on the Supreme Court repeat one of the most basic principles of American constitutional government: “The president is not above the law.” They then proceed to obliterate it.

Although the pro-Trump justices attempt to nest the breadth of their opinion in legalese, their finding that the president cannot be prosecuted for “official acts,” and that much of Trump’s efforts to seize power fall under that rubric, means that the justices have essentially legalized a losing president refusing to step down, as Trump tried to do after the 2020 election.

The Court’s opinion presents an absurd paradox that defeats the purpose of a constitutional democracy governed by the rule of law. It has little basis in the Constitution or in the words of the Founders. It is the outcome that most benefits the Court’s preferred presidential candidate, while allowing the justices to live with themselves for defacing beyond recognition the Constitution and the concept of democratic self-determination.

In her dissent, Justice Sonia Sotomayor puts it plainly. Regarding the question of “whether a former President enjoys immunity from federal criminal prosecution,” Sotomayor writes, “The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” That is the long and the short of it.

I remember when George W. Bush won re-election in 2004, some of my liberal friends were convinced that he would not leave power when his term ended four years later. I thought Bush was a bad president but that possibility always seemed far-fetched to me. What worries me about these latest SCOTUS rulings, however, is that if Trump is re-elected he could just choose to stay in power and the Supreme Court would reject any legal means to remove him from power because they would determine that no one had standing to do so.

That is insane pretzel logic, and yet I would not put it past this Supreme Court to make that decision. Earlier this year they rejected a plain-text reading of the 14th Amendment that would have disallowed Trump from running for the presidency for supporting an insurrection. The 22nd Amendment limits presidents to being elected to more than two terms, but it says nothing about a president serving more than two terms. This Supreme Court is revisionist enough to exploit that loophole.

I had always assumed that U.S, institutions ensured that American democracy would wind up with minmax outcome or better. In other words, even if horrible people are elected to high office, democratic structures imposed hard limits on the damage that they could do. Even during Trump’s first term, there was just enough juice in those countervailing institutions to prevent the worst of the worst from happening.

Those guardrails are gone now. If Trump wins in November, if Republicans win both houses of Congress, I have zero faith in any countervailing institution protecting civil liberties, the rule of law, or any of a hundred ontological givens that I had taken for granted all my life. In that outcome, the U.S. would shift to being a competitive authoritarian state.

Every once in a while I think about something my comparative politics colleague Tom Pepinsky wrote about life in an authoritarian society:

It turns out that most people express democratic values, but living in a complicated world in which people care more about more things than just their form of government — feeding their families, educating their children, professional success — it is easy to see that given an orderly society and a functioning economy, democratic politics may become a low priority. The answer to the question “will ‘the people’ tolerate authoritarian rule?” is yes, absolutely.

Americans need not look far to see what this kind of boring authoritarianism looks like. As University of Michigan political scientist Robert Mickey has argued, swaths of the US South were effectively under one-party rule during parts of the 20th century. These regions slipped into authoritarianism quietly, as local politicians sought to advance their careers and the interests of their supporters. It took not just the civil rights movement but also dedicated struggle to bring these pockets of authoritarianism to an end.

A second consequence involves how to tell if you are living in an authoritarian regime versus a democratic one. Most Americans conceptualize a hypothetical end of American democracy in apocalyptic terms. But actually, you usually learn that you are no longer living in a democracy not because The Government Is Taking Away Your Rights, or passing laws that you oppose, or because there is a coup or a quisling. You know that you are no longer living in a democracy because the elections in which you are participating no longer can yield political change.

Pepinsky noted yesterday about the SCOTUS decision: “This isn’t a ruling for 45, this is permission for 47.” That is exactly right.

To his credit, Joe Biden explicitly rejected the protections the Supreme Court wants to endow the office of the presidency, saying, “This nation was founded on the principle that there are no kings in America.” If he loses to Donald Trump in November, that principle will also lose — as will the last remaining shreds of faith I have in the U.S. system of government.