Friday, January 26, 2018

Constraints on Authoritarian Regimes and Lessons for the US

by Michael Dorf

My column for this week uses the occasion of the Supreme Court's decision to grant plenary review in the latest version of the Travel Ban litigation to take stock of the Travel Ban saga overall. I conclude that even if the Supreme Court ultimately upholds the Travel Ban or rejects the challenge to it on justiciability or other procedural grounds, the plaintiffs will nonetheless have succeeded in substantial measure. I identify three ways in which a Supreme Court defeat would nonetheless leave intact at least a partial victory: (1) the interim relief and delays permitted thousands of people who otherwise would have been excluded by the Travel Ban to come to the US; (2) the initial court decisions invalidating the ban led to modifications that resulted in somewhat less harsh and more defensible (though still, in my view, unlawful) versions; and (3) the Travel Bans crystallized the cruelty, incompetence, racism, and other horrible aspects of Trump and his administration, thus serving as a potent symbol for resistance.

Some of that third factor involves Trump's norm breaking--such as his reference to Judge Robart as a "so-called judge." More fundamentally, one of the central attacks on the Travel Ban is the claim (with which I agree) that it violates constitutional rules forbidding religious discrimination (whether located in the First Amendment's Establishment Clause or Free Exercise Clause or the equal protection component of the Fifth Amendment's Due Process Clause). The evidence for this claim comes from Trump's call during the campaign for "a total and complete shutdown of Muslims entering the United States" and his occasional referring back to that statement in discussing the Travel Bans as adopted. The "total and complete shutdown" language was a campaign promise to act unconstitutionally, but it was also the violation of a longstanding norm against express appeals to racism, religious bigotry, and xenophobia.

Of course, Trump's violation of minimally egalitarian norms goes far beyond the Travel Ban.  You don't say people from Haiti and Africa come from "shithole countries"; you say you want to reform immigration to ensure that immigrants have the "right skills." More broadly, Trump's open appeal to racism violates the norm of restricting the expression of such views to plausibly deniable dog whistles.

Trump has violated other norms as well. He still hasn't released his tax returns. He attacks the free press as fake news. He has said that as president, he cannot have a financial conflict of interest in order to justify his continuing to profit from his businesses while president.

That last one is particularly telling. Perhaps a lawyer told Trump that some statutes forbidding financial conflicts of interest do not apply to the president, which is true, but Trump understood that to mean that therefore nothing he does as president amounts to a conflict of interest. It would be easy to ridicule that misunderstanding as reflecting Trump's general ignorance about, well, about just about everything he should know something about as president. However, I think the nature of the misunderstanding reveals a deeper problem: With respect to many issues involving his own behavior, Trump has no internal moral sense. He thus draws his understanding entirely from the presence or absence of external sanctions. He is like Holmes's "bad man" who does whatever he can get away with.

There is substantial evidence from Trump's business career that he treats whatever he can get away with as the operative standard for his conduct. Trump not only repeatedly stiffed contractors and others to whom he owed money because he knew that he could impose large transaction costs on anyone who took him to court, but he seemed to think that this pattern of behavior was not in any way dishonorable. Indeed, he boasts about taking unfair advantage of people foolish enough to do business with him as evidence of his business acumen.

Whether Trump has any moral compass at all calls for speculation beyond my knowledge and expertise. But we can more or less stipulate that he has substantially less of a moral compass than any of his predecessors as president. And that leaves us with a puzzle: Why hasn't Trump violated even more norms and laws when he could have gotten away with doing so?

Why hasn't Trump fired Jeff Sessions and everyone under him until he could find a Justice Department official who would fire Special Counsel Mueller? (More about that one below.) Why hasn't Trump issued blanket pardons to everyone in his campaign and administration? Why, when he is insisting on border wall funding as part of a DACA deal, hasn't he also insisted on funding for carving his own likeness onto Mt. Rushmore?

Much of the answer is that Trump and/or his closest advisers perceive that he would pay too steep a political price for actions of the sort described in the foregoing paragraph. But we should drill down a little deeper. Why does Trump care about that? Presumably because, like most first-term presidents, Trump wants to get re-elected. If that's the only answer, then we face potentially even worse dangers from Trump should he (heaven forbid) manage to get re-elected.

However, I don't think that the hope of re-election is the only constraint that prevents Trump from doing whatever he can that won't land him in prison or result in his impeachment and removal. I want to suggest that one useful tool for thinking about the constraints--weakened as they are--on Trump is to look to constraints on authoritarians.

Why do autocrats who kill their political enemies try to do so in ways that are at least superficially deniable? Why do they bother to hold sham elections? Why do they go through the motions of acknowledging a legislature as an alternative power center?

In a 2007 article on the duration of authoritarian rule by particular autocrats, political scientists Jennifer Gandhi and Adam Przeworski acknowledge that
the long tenure of some autocrats is attributed to their overwhelming monopoly of force. It is certainly true that many long-surviving autocrats headed some of the most repressive regimes on earth: Stalin remained in power for 31 years, Mao ruled over China for 33 years, and each was responsible for millions of deaths. Yet brutality is not enough: Having killed more than 2 million Cambodians, Pol Pot was ousted after only 3 years in power.
Gandhi and Przeworski analyze various autocrats and conclude that they use institutions (such as legislatures and rigged elections) to insulate themselves against overthrow by shoring up their legitimacy, but that for this strategy to work, autocrats necessarily must make consequential compromises with other actors whose agenda does not necessarily align with the agenda of the autocrat. "Hence," the authors conclude, "there is a reason to think that institutions do matter under authoritarian regimes."

I am not contending that the US under Trump is just like the Soviet Union under Stalin or China under Mao. What I am suggesting is that we gain some insight into our current predicament by looking to the substantial literature (of which the Gandhi and Przeworksi article is one excellent contribution) on constraints on authoritarians. What we learn from that literature is illuminating and disturbing.

We learn that to shore up his legitimacy, a successful autocrat will rely on government institutions, not just rule by force. In so doing, however, the autocrat will cede some real power to those institutions.

Now look at how, despite Trump's populist talk, he has governed almost entirely as a generic right-wing Republican, courting the base with socially conservative policies and judicial appointments while courting the donors with corporate tax cuts. What that tells us--seen through the lens of constraints on authoritarians--is that Republicans in Congress could constrain Trump in various ways but that they choose to use the substantial leverage they have to pursue the policies most dear to them.

If you want to know why Trump doesn't think he can get away with changing the currency to replace Benjamin Franklin's likeness with his own on the $100 bill, you can thank Republicans in Congress. But if you want to know why Trump can also get away with denigrating over a billion dark-skinned people as coming from "shithole countries" and then lying about it, you can also blame Republicans in Congress. They could do more to rein him in but choose not to.

Finally, I'll give credit where credit is due, in this instance to White House Counsel Don McGahn for threatening to quit last summer when Trump wanted to fire Mueller. Gratitude is owed to McGahn for taking a stand. And I'll also use that resolution to reiterate that I am only proposing that we look to constraints on genuine authoritarian regimes as instructive; not saying that the Trump administration is very far down the road to becoming an authoritarian regime. A counselor to Kim Jong-un who threatened to quit over some policy he deemed wrong would likely be executed. That wasn't an option for Trump with respect to McGahn.