Seeking policy resolution from the courts, when you have the votes to do it yourself, is the height of legislative folly.
There have been many Democrats and liberals arguing that Trump is not just wrong and foolish, but a danger to democracy. Tom Ginsburg and Aziz Huq put forward a more sophisticated version, arguing that while Trump poses no danger of a coup, American democracy may face incremental erosion. But their arguments are unpersuasive as a matter of sociology and law. Moreover, they ignore, as is all too typical, the burgeoning administrative state’s danger to democracy. And I say this as one who has substantial reservations about the President.
First, they analogize American democracy to that in Poland and Hungry, where they contend that populist authoritarian parties have degraded democracy. But United States citizens are far wealthier and that wealth provides greater stability. We are not just “fairly wealthy” but very wealthy. And these nations are still scarred by a recent totalitarian past, making their institutions less secure.
The authors also worry that the rule of law may be at risk here because of the deference that the judiciary shows the political branches. This is an odd claim, because there is an extensive literature, going under the rubric of “We the Court” that suggests that the modern courts show little deference. Recently, for instance, lower courts have invalidated Trump’s executive order wholesale, although the legal arguments against its entire scope are frail. And the Supreme Court invalidated the Military Commissions Act passed by Congress and signed by the President within a half decade of 9/11. The authors are concerned that Trump may nominate deferential judges to the judiciary, but the candidate he has nominated seems disinclined to deference to the executive and that is the general position of the conservative elite whom he has decided to follow on this subject.
The authors fear that since Congress is controlled by the same party as the President, they will not restrain anti-democratic actions by the executive. But the President has only a narrow majority in the Senate and many in that majority depend on independents to be reelected. We have already seen significant criticism from Republicans of the President’s actions and will see more unless he manages to boost his popularity by appealing to independents. Gerrymandering cannot change the election districts of Senator and despite gerrymandering the House will change hands when independents substantially change their view of the President, as happened in 2006.
The authors fret that civil servants may be fired. But there are strong protections for federal bureaucrats in our laws and it is implausible to believe that the Republican Congress could substantially change them, let alone fire individuals, given both the filibuster in the Senate and the substantial number of civil servants in some Republican districts.
The civil service is, however, an excellent example of another kind of danger to democracy. The average member of the federal bureaucracy is to the left of the median Democratic voter. As a result, the bureaucracy can frustrate to a not insubstantial degree democratically elected Republican administrations.
Ginsburg and Huq’s fail to recognize that democracy can be eroded not only by authoritarians but by entrenched elites (such as a powerful policy making judiciary rather than one that just enforces the Constitution’s text as well as as the large civil service needed to supervise the administrative state) that they seem to believe are necessary to protect democracy. Donald Trump was elected precisely because many Americans feared that an unresponsive government controlled by elites made economic stagnation impervious to democratic change.