Wednesday, November 27, 2019

The Waning of the American Republic

by Michael C. Dorf

A century ago, pioneering cultural historian Johan Huizinga published the first (Dutch) edition of his brilliant, if somewhat tendentious The Waning of the Middle Ages (sometimes translated as The Autumn of the Middle Ages). Focusing on the 14th century Burgundian court in what is now France and the low countries, Huizinga described a period of decay and pessimism, but also one of continuity. In an insightful aside about the masterful art then being produced in northern Italy, he observed: "Here, as elsewhere, the line of demarcation between the Middle Ages and the Renaissance has been too much insisted upon." Similar statements appear throughout the the book. Periodizations, like generational lines, are typically imposed from outside, and observable mostly in retrospect. The society Huizinga chronicled was dying, but most of the people of the time did not realize it, because they were too close to see the sweep of history.

And so perhaps it is with us, but worse, for while Huizinga is right that the line between the Middle Ages and the Renaissance was not sharp, it sloped upwards. The society that was dying would give way to a better one. We may not be so lucky. We may be living through the waning of the American republic. Worse, we may be living through the waning of representative government more broadly. One hopes not, but it would be dangerously arrogant to think that, as Francis Fukuyama foolishly proclaimed after the fall of the Soviet Union, liberal democratic government has permanently triumphed anywhere. Failure is always an option.

I could have written the foregoing two paragraphs at any time in the last three years, but recent events press them upon me today. I begin with what will seem like an obscure example, so I beg my readers' indulgence as I explain why I am focusing on what looks relatively unimportant.

Last week, Justice Kavanaugh wrote a brief concurrence in the denial of certiorari in Paul v. United States. In it, he expressed admiration for Justice Gorsuch's dissent in last Term's decision in Gundy v. United States. As I noted when Gundy was decided, four justices who participated in the case indicated a willingness to reinvigorate the non-delegation doctrine and thus to hamstring administrative agencies. Justice Kavanaugh did not participate in Gundy, so his Paul opinion is significant. In it, he doesn't exactly say that he wants to invalidate all delegations of power to federal administrative agencies. Rather, he suggests converting an existing rule of statutory interpretation--the "major questions" doctrine, under which courts presume that Congress did not intend to delegate to agencies authority to decide major questions--into a rule of constitutional law--under which Congress would be forbidden from delegating the decision of major questions to administrative agencies.

Depending on how "major" a question must be to count as a major question, the constitutionalization of the major questions doctrine could either be unimportant or very important. If the threshold is low, that would mean invalidation of a great deal of existing administrative agency authority. And while one might think that would not be such a bad idea while Donald Trump is president and his appointees head the various federal agencies, such a perspective is shortsighted.

For one thing, professionals in the agencies continue to try to do their jobs. When they manage to do so without being fired, ridiculed on Twitter, or both by the president, they actually can regulate responsibly. A vigorous major-questions-focused non-delegation doctrine could threaten some of the responsible regulations that make it through the Trumpian filter.

Moreover, Trump will not be president forever. Eventually there will be a Democratic administration and there may some day be another normal Republican administration in which leadership takes statutory obligations to promulgate regulations seriously. At that point, a revitalized non-delegation doctrine would be a threat to the administrative state.

Should that come to pass--should the Roberts Court in some future case severely cut back on the administrative state--we will likely look back and realize that it was foreordained. When? When Justice Kavanaugh wrote his Paul opinion? When Justice Gorsuch wrote his Gundy dissent? When Justice Kavanaugh was confirmed? When Donald Trump was elected? When Mitch McConnell decided to block hearings for Merrick Garland? Any such landmark is both plausible and somewhat arbitrary. The key point is that we won't know it's happened until later.

Similar observations apply to a range of other issues. The Roberts Court has moved the law to the right on affirmative action, guns, immigration (speaking of which, hey, here's my new Verdict column on the outrageous Trump administration policy of immigration arrests at and around state courthouses), and more. Further rightward movement on these and other issues is likely. The Court could weaken constitutional protection for abortion rights this Term and eliminate the right entirely in some future Term. I don't think any of those results is foreordained, but if they do happen, I think we will look back and wonder how we didn't realize the transition through which we are living.

To be sure, each of the developments I've described would change American law, but none would signal the decline of the American Republic. Is the title of this essay hyperbole? Maybe not. While any of the sets of doctrines I've described would be reversible after a changeover in personnel, such a change would require the election of a Democratic president and a Democratic Senate. That, in turn, would require normal elections to be held. Despite the Court's acquiescence in political gerrymandering and various efforts at voter disenfranchisement, it is possible to imagine such victories even with the advantages that the Senate and Electoral College give to constituencies (older, whiter, more rural voters) that typically vote Republican.

But should the Court acquiesce in Trump's stonewalling of Congress, and should a Trump emboldened by his non-removal by the Senate rationally conclude that there is nothing to restrain his authoritarian impulses, it is not difficult to imagine him moving against the courts themselves--as authoritarians in other until-recently-democratic countries have done. At that point, it will be too late for the Roberts Court to say that Trump has finally crossed the line.

I have no doubt that many Republicans who publicly support Trump privately find his boorishness, corruption, incompetence, and pettiness distasteful. Yet despite all of that, Trump enjoys broad support from GOP voters and elected officials. Just imagine how little resistance there would be to a future authoritarian who, unlike Trump, has brains and impulse control. If and when that evil fate befalls the erstwhile United States, we will look back and see acquiescence to Trump and Trumpism as having foreordained it.


Joe said...

And, maybe, then they will have to change the text of the Pledge of Allegiance.

Happy Thanksgiving everyone. There was an op-ed in the NY Daily News, but I had the sentiment beforehand -- the pardoning of turkeys is a ridiculous and offensive exercise. Especially with this guy in office. The bit of bringing them to a HOTEL room first ...

I'm REALLY speaking to the choir here, especially Prof. Colb, but just to put it out there.

Unknown said...

A sober and persuasive piece. The next-to-last paragraph states succinctly what has been on my mind. I hate to play Cassandra, but I have wondered: the most likely outcome of the current set of events is one or more Articles of Impeachment issuing from the House, followed by acquittal on all counts in the Senate. At that point, Trump will know for certain that he cannot be held to meaningful account no matter what he does.

So: what if he then orders all the witnesses against him executed, and this is carried out? What if he declares that his acquittal entitles him to a third term or to the presidency for life, and/or to appoint to himself a trillion dollars from the Treasury? Is there any doubt that the GOP and the ~40% base would noddingly (or applaudingly) approve?

Hyperbolic? I guess so. Truly unimaginable? Not to me these days.

barcrunchsub said...

Prof. Dorf:
Insightful essay, as always. But, have to ask, why is "Term" capitalized? Not doubting your judgement here, just wondering.

Joe said...

I think the second comment isn't quite "Cassandra" in that some people does believe it.

Me personally, I think it is a very uphill battle to removal, but impeachment is still important since it will have an effect, something like even a failed prosecution has an effect, and long term is a message from the people's House of what is not allowed.

An acquittal from the Senate also sends a message. Meanwhile, there are various other means to fight tyranny, imperfect as they always tend to be.

I think "Term" is capitalized to stand for a term of the Supreme Court as compared to an everyday usage of that word.

Michael A Livingston said...

The decline of democracy didn't begin with Trump. If Clinton had won, two families would have controlled the presidency for 24 or 28 out of 36 years, and been in other important positions for still longer. This is pretty clearly not what the founders intended. If democracy is to get back on track, the causes and not merely the effects have to be considered.