The system doesn't work
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The system doesn't work
A look back at the Trump/Biden transition
Hey folks, happy Labor Day.
As usual on federal holidays, I’m going to take a break from fresh content and un-paywall a classic Slow Boring article to give new subscribers something to think about and free list members a chance to consider becoming paid members to get full access to all the good stuff and support our work.
Normally that means going for something evergreen. This is not really a “news” site per se, and a lot of our articles deliberately address policy issues in a way that’s meant to be relatively timeless.
But this weekend we decided to look back at something from January of 2021, in the early days of the site and just about a week after the kinda sorta coup that Trump tried to stage on January 6. It was a dramatic, emotional time and it’s noteworthy because a lot of people — especially on the right — were very critical of Trump during his moment of weakness, only to come back around to him over the past several years.
I, too, was very much reacting to the news (how could you not) but was also trying to contextualize my reaction in terms of my much longer-term pessimism about the stability of the American political system. That’s something that I’d been writing about at Slate and at Vox long before anyone took the idea of a Trump presidential candidacy seriously. And it colors my view of the entire Trump era, both in terms of his sins as a scumbag demagogue and also the sometimes-overstated and sometimes-misstated liberal panic about the state of American democracy. The point here is that even if all goes well between today and Inauguration Day 2025, there are much deeper institutional failings that make the system prone to dangerous instability.
And with that said, we hope you enjoy your long weekend, as well as this Slow Boring flashback.
Juan Linz’s revenge
The late political scientist Juan Linz observed in his 1990 article “The Perils of Presidentialism” that the Madisonian or presidential style of democracy was associated with much more constitutional instability than the parliamentary form.
As he saw it, the interbranch conflict that Madison believed to be a guarantor of freedom was actually a source of brittleness. If the president wants X and the Congress wants Y then either they compromise or else nothing happens. That’s fine most of the time, but unlike in a parliamentary system where you can call a new election to resolve the conflict, or have a coalition “collapse” and be replaced with a new one, in a presidential system you’re just stuck. That can encourage various kinds of extra-constitutional measures to pressure one side or the other into surrendering, which in turn tends to generate a breakdown of the democratic process.
He observed that the United States is a big exception to this trend, but he attributed that to our lack of close-knit ideological political parties.
In my 2015 article “American Democracy is Doomed,” I noted that the United States no longer lacks close-knit ideological political parties and predicted it would not remain the exception.
I agreed with Linz that while we had the ideologically scattered parties of the 20th century, the Madisonian system worked pretty well. For example, since many Democrats were conservatives and some Republicans were liberals, a Democratic Party member of Congress would sometimes act as a Democrat who wanted his party to win office, but he might also act as part of a trans-partisan ideological coalition. And he might also act as a steward of Congress, protecting it against a presidential power grab. The members were selfish about their own personal power rather than being team players. Presidents would come and go, but you wanted your committee to have power. But polarized, ideologically infused parties would be a different matter. We had that in the 1850s and it led to the Civil War. And now we have it again in the 21st century and it’s leading us to a bad place.
This was all written before Trump, and in some ways Trump complicated the analysis. But on another level, we’re seeing it come to pass.
The insurrection of January 6
On January 6, 2021, a mob that had assembled at the behest of the president stormed the Capitol Building. This mob had been told by the president and his collaborators in Congress and the media that:
Joe Biden’s electoral victory last November was fraudulent.
The Congress of the United States — and possibly Mike Pence as an individual — had the authority to redress the fraud.
Their mission was to bring pressure to bear on Congress to deliver the correct result.
It’s not perfectly clear what exactly was intended in the storming of the Capitol Building per se. Some members of the mob seem to have had very serious violent intentions, while others appeared to be engaging in lighthearted riot tourism. In particular, even if the attack had been more “successful” in terms of hurting people and breaking things, it doesn’t seem like there was any specific plan of how this would result in changing the outcome of the election.
Most vexing of all, it’s not crystal clear what was going on in the heads of Republican Party members of Congress, although it’s clear that a nonzero share of the GOP objectors to the election result knew that their objections were 100% bullshit and were going along for cynical reasons. Some people assume very confidently that they all think that, but that’s genuinely not clear to me. Days before the riot, Fox Business host Lou Dobbs referred to “crimes that everyone knows were committed” while conceding that “we have had a devil of a time finding actual proof.” Is that just schtick? Is Murdoch airing Dobbs saying that just schtick?
It does seem clear to me that there was not an actual plan to overthrow the government. It’s different, in that sense, from the Insurrection of 31 May when a mob organized by the Jacobin Club and the city government of Paris attacked the national convention to deliver a decisive victory inside the legislature to the Montagnards over the Girondins.
But of course the most violent members of Trump’s mob thought it was all real. And as Hakeem Jefferson writes, there’s a long tradition in American life that treats decisive electoral interventions by non-white voters as presumptively illegitimate. The biracial political coalitions that governed ex-Confederate states in the 1870s were generally overthrown by a mixture of electoral organizing, mob violence, and strategic acts of terrorism. So it’s far from inconceivable that actions of this sort could succeed, especially given the general tendency of law enforcement to go softer on right-wing protesters.
And whatever Trump was hoping to see as of Thursday morning, we know how he acted throughout the day. With Congress under attack, Trump:
Declined to authorize the timely dispatch of National Guard forces to restore order.
Worked the phones lobbying senators to vote to overturn the election.
That’s some of the most serious misconduct imaginable on the part of a president. The day’s events led to several deaths, including the murder of a Capitol Police officer. But the breadth of the wrongdoing is so much shockingly larger in scope than the instigation of mob violence. He genuinely abused his authority as president seeking to leverage violence into remaining in office.
And then of course it failed.
The Pence coup?
The situation was resolved eventually by what appears to have been a decision on the part of the Vice President and the civilian leadership of the Defense Department to go around the president’s back:
Army Secretary Ryan McCarthy told reporters that all 1,100 members of the D.C. National Guard had been mobilized on Wednesday afternoon to support the local police. He said that several federal law enforcement entities would be working to determine “how a clearing operation may be conducted.”
The decision to mobilize the D.C. National Guard — by Secretary McCarthy and Christopher C. Miller, the acting defense secretary — came as a pro-Trump mob breached the Capitol earlier in the day.
Defense and administration officials said it was Vice President Mike Pence, not President Trump, who approved the order to deploy the D.C. National Guard. It was unclear why the president, who incited his supporters to storm the Capitol and who is still the commander in chief, did not give the order.
Then on Friday, Nancy Pelosi told House Democrats that she’d spoken to the Joint Chiefs about preventing “an unstable president” from ordering a nuclear attack. The military says officially that the Speaker merely asked informational questions about the nuclear command process. Interestingly, I have not seen a lot of criticism of Pence and Miller for their actions on Thursday, while many experts on Twitter and in the press said Pelosi’s remarks on Friday were inappropriate.
And there is one big difference here.
Under the Pence/Miller approach, we at least pretend that the president of the United States is still acting as commander-in-chief of the armed forces, whereas Pelosi seems to be trying to explicitly communicate that he’s been removed from the chain of command.
But practically speaking, the issue seems to be that he has in fact been removed, which is of course not how it’s “supposed to work.”
The mirage of impeachment
To try to leverage a violent mob’s physical assault on the United States Congress into reversing the outcome of the presidential election is pretty much the most impeachable offense that I can imagine. And on paper, what’s supposed to happen is the House votes on articles of impeachment and then the Senate holds a trial.
But the constitutional bar for removal is very high — 67 senators.
How high a bar is that? Well in an election where Trump lost the national popular vote by 4 points, there are 23 states with 46 senators representing states that he safely won by five points or more. And it’s made particularly difficult because it’s a collective action problem. Even if, I dunno, Jerry Moran were to prefer that Trump be removed he’d still be better off with someone else being the guy who does the removing. Doing the right thing to save the republic would be an excellent idea. But you need something like a dozen true statesmen among the Senate GOP caucus to make that plausible, and I don’t think there are a dozen. To remove Trump is just very, very hard.
So while I think it’s easy to say “the solution to an unfit president is removal, not for the military to go rogue,” that’s a bit of an unrealistic view of the situation facing Joint Chiefs Chair Mark Milley and the rest of the top brass.
After all, suppose they’d gotten on the phone with Mitch McConnell and said “sorry, senator, the only way we can send in the National Guard and save you from a rampaging mob is for you to swiftly vote to remove Trump from office first.” Even if that had worked (which seems implausible), it would not exactly have been a triumph of civil/military relations for the Joint Chiefs to order the Senate to impeach the president. The military, to its credit, is trying to preserve the forms of constitutional government, even while violating its substance, because all the alternatives are worse.
Pelosi’s choice
The argument that Pelosi should go along with the charade rather than signaling that she’s confident the military will do the right thing has some merit to it.
But just as Senate Republicans are politicians who need to navigate their constituents’ views, so is Nancy Pelosi. She leads the House Democratic Caucus and her members want to know what she’s doing about the fact that the president’s long-visible unfitness is now provoking acute crisis in the final weeks of his administration. And those caucus members are answerable to rank-and-file voters who are understandably disturbed about what they saw on Thursday and are wondering what else might happen.
Perhaps she should be rushing faster with impeachment. But even if she did that, speedy removal would not be the outcome.
Signaling to the military that congressional leaders would prefer that they take their cues from Pence rather than Trump is not an option available to the Speaker under the text of the U.S. Constitution. But it is clearly a thing that she as a human being is able to do. To do it, and then to reassure the public that it has been done, thus calming the situation, strikes me as a responsible course of action.
The constitutional process of impeachment remains an important part of this. In my view, it’s important not because it stands any reasonable odds of leading to Trump’s removal, but both as a statement of principle by the House and also as a warning to Trump that if he takes further flagrantly inappropriate steps such as pardoning the rioters, he will be removed.
It’s a bad system
All that being said, while I defend everyone’s decision to work outside the constitutional process, I also don’t think we should muffle what the critics are saying.
To look at this situation and conclude that “the system worked” would be a huge mistake. What happened is that the system did not work, and several actors in key positions inside the system simply chose to disregard it. They’ve been backed in this regard by other actors in American society. A bunch of business leaders came out publicly against efforts to overturn the election. Both Facebook and Twitter have deactivated Trump’s accounts.
Arguably more importantly, while the official conservative position seems to be that the social media companies are doing the wrong thing, the president is not currently live on Fox News denouncing his enemies. Has he forgotten that he has other communications channels available besides Twitter, or is Fox declining to book him? The Murdoch-owned Wall Street Journal has already called for Trump to resign, which I think is perhaps an indication that while Fox hosts will continue doing anti-anti-Trump stuff for ratings, they are not actually interested in continuing the struggle.
All of this is to say that what’s working, to the extent that anything is working, is that American society and the American state are capable of working around the flawed design of the system when in a crisis. But the system as designed does not work, and the solution may not be as elegant next time. It’s important for everyone to keep that in mind, in case things ever go far enough off the rails that we need to start all over again.
The system doesn't work
Although I don't especially agree with it, it occurs to me again that the libertarian account of why our Presidential system started failing after 200 years is somewhat compelling: everything is now federal. Between the expansion of the welfare state, the federal bureaucracy, anti-discrimination statutes, and the federal judiciary, the person who controls the federal government now controls most of what people care about. A few examples from recent history:
- Can states require age-verification for online pornography? The federal courts say "no."
- Can California ban one-sided arbitration agreements in employment contracts? The Federal Arbitration Act as interpreted by Justice Roberts says "no."
- Can Florida's universities change accreditation agencies every few years? The Education Department, which controls federal aid money, says "no."
- Can states categorically ban felons from owning handguns? The answer, according to some federal courts interpreting Bruen decision, is "no."
- Can local police experiment with a British "Section 60"-style approach to gun crime, where a commander designates in advance an area where pedestrians can be randomly searched for 24 hours? The answer, per 42 U.S.C. 1983, the Violent Crime Control Act, and courts, is no.
- Can your city kick homeless people out of the park and insist they relocate to a municipality that has cheaper housing and a larger number of rental vacancies? In the Ninth Circuit, the answer is no.
- Can West Virginia build a pipeline? Up until Congress passed Joe Manchin's bill stripping federal courts of all jurisdiction over the issue, the answer was "no," because federal regulations and lawsuits made it effectively impossible.
So whether you care about ideology or just your local quality of life, your state and municipal government is mostly irrelevant. If you care about public policy *at all* the only option is to seize control of the federal government. And Madison did such a good job dividing power across the federal government that the only option is to seize control of all of it. Whatever one thinks about the state laws I've discussed above, if those issues could be decided at the state level instead of in federal courts, Congress, and the executive agencies, there would not be nearly as much need for a fight to the death to control federal power.
In 1933 it was agreed that, given advancements in communication and transportation, the presidential inauguration could be moved up from March to January. A century later, I think the case can be made to further reduce the time available for lame duck mischief.