“I don’t think anyone seriously expects Republican control come 2017,” I wrote just over two years ago, yet here we are. And since we’ve survived President Emolument’s administration for this long—and the Senate just eliminated the filibuster for Supreme Court nominees—I have time to hold myself accountable: Was I wrong about the “prophetic fallacy” two years ago?
In 2015, I responded to a Vox editorial arguing that the U.S. constitutional system is doomed for structural reasons: Its 18th-century separation-of-powers mechanisms cannot withstand today’s ideological gridlock, so eventually the parties will exceed mere norm-breaking, triggering a constitutional crisis that will result in a new (parliamentary?) system of government. First, senators threaten to destroy the filibuster, then presidents legislate with executive orders, and then we’re Venezuela.
I countered that Vox was committing the “prophetic fallacy,” which I think I coined. It means unfalsifiable, apocalyptic predictions couched as thoughtful political science. It’s not certain that the U.S. government will fail because the parties don’t get along, and Vox‘s argument rested on the position that “both sides do it too (except the Republicans are worse).”
So, it sure looks like the constitutional system is in jeopardy, but is it doomed for the reasons Vox outlined? To be fair, I expected that Republicans had no chance of winning the presidency going forward (and not just popular vote) and that the history books would look back at this era as one of incremental change by mediocre Democratic presidents. Now, I will never doubt Democrats’ ability to lose elections.
However, the foundation of Vox‘s argument was that both sides are breaking democratic norms to the point of constitutional fracture. This still is not correct. There’s a difference between Democrats’ breaches of norms and Republicans’. That is: Are there any win-sets for either party when it’s in the minority?
A “win-set,” termed by Robert Putnam, is any number of potential outcomes that would be acceptable to one’s own side in two-step negotiation. Applied to this context, there’s no evidence that Democrats would have rejected every single Republican Supreme Court nominee in 2017. I believe they would have accepted a 70-year-old conservative, for example, to fill the vacancy, believing that this individual would retire or die within several years. By contrast Republicans did not have any win-sets with President Obama. They weren’t going to accept any of his nominees—hell, they wouldn’t even let him fill routine positions in the executive branch—and in 2016 some of them even promised to obstruct anyone Hillary Clinton nominated to the Supreme Court.
So as of now, Vox‘s conditions for structural breakdown have not been met. Democrats still “play by the rules” and Republicans simply refuse to negotiate. We still have a problem of minoritarian power vetoing the will of the public, but the system hasn’t failed yet due to gridlock.
Now, what to make of our emolument-hogging president? This too is not something Vox or anyone else predicted in 2015. Moreover, Trump’s infiltration of the Republican Party didn’t occur because of gridlock; rather, it was the party’s ideological sclerosis. “Tax cuts for the few, and fetuses for all,” is an even less inspiring slogan for the majority of Americans than Trump’s blather, even when Ben Carson barks it. Beyond that, the norm-breaking involved with Trump isn’t Republicans obstructing Democrats; it’s Republicans failing to hold their extra-constitutional president accountable.
Let’s be clear, though: Some parts of the Constitution aren’t enforceable without a deep ideological commitment to its principles. For example, Trump’s missile attack on Syria wasn’t authorized by Congress and doesn’t fit into the War Powers Act. Is anyone going to impeach him for that? The same goes for emoluments. Separation of powers can cause needless gridlock, but checks and balances can fail easily too.
Thus, the fear today isn’t gridlock but its opposite: “constitutional retrogression” due to lateral control of the government by power-hungry authoritarians. Academics Aziz Z. Huq and Tom Ginsburg discuss this in their article, “How to Lose a Constitutional Democracy.” (SSRN link is down as I write this.) The authors argue that instead of a military coup or a dictator taking power, the more likely path to authoritarianism for the U.S. is a silenced civil society, compliant courts, and rigged or meaningless elections.
I emphasize that if this disaster comes about, its cause won’t be norm-breaking gridlock but norm-breaking procedurally successful governance. One can even imagine Trump leaning heavily on the president’s pardoning power to excuse his family and cronies from liability. It’d probably be constitutional even if the president is part of the conspiracy.
I’m unsure constitutional retrogression will blight us. At least, I think the courts are still sufficiently loyal to the Constitution to prevent that kind of subversion, and Trump really has not made many friends among the judiciary. But the only way Vox‘s argument holds up at this point is by predicting what happens once Republicans are out of power. Depending on the scale of his overreaches, it’s quite conceivable that Democrats (let’s say) would have little political choice but to prosecute Trump and his cronies for their criminal regime, breaking the presidential tradition of not going after one’s predecessors.
Once these trials begin we’re totally in banana republic country because the political discourse will disintegrate into endless recriminations and revenge prosecutions. Or, maybe Americans will tire of it and their politicians will get the hint and become civil again. That’s the prophetic fallacy for you.