The first 18 months of Donald Trump‘s presidency have been the most transformative for the United States’ federal government since the New Deal—but rather than expand the institutions of government, Trump has effectively destroyed them.
This is not an exaggeration. Beyond merely trimming the fat of America’s bloated federal bureaucracy, the Trump administration has effectively waged war on federal agencies. The Department of State is a shadow of its former self; the Environmental Protection Agency has shrunk to Reagan-era levels; the entire federal workforce itself shed some 16,000 positions in the first year of the Trump presidency. One-time Trump consigliere Steve Bannon pledged shortly after the former took office that the administration’s core objective was the “deconstruction of the administrative state,” and he wasn’t lying: While policies were once determined by collaborative processes, agencies are now forced to scramble to maintain the many, oft-conflicting decrees tweeted from the commander-in-chief’s iPhone.
After nearly a decade of polarization and inaction by lawmakers in Congress—a trend that was only partially reversed when Republicans took control during the 2016 election—the institutional turmoil facing the executive branch poses a significant problem for the country’s democratic equilibrium. But through all the tumult there’s remained one constant: While the two strongest branches of government have gradually eroded in recent years, the Supreme Court has remained strong. Until now.
Even before Trump won re-election, the court was facing a major crisis. Following the death of Justice Antonin Scalia and a pledge among Senate Republicans to block all potential nominees (including Merrick Garland) from ascending to the bench, the court found itself faced with the prospect of frequent 4–4 deadlocks. Such complacency would have disastrous results, giving lower courts power to set legal precedent. As Harvard Law School professor Richard Fallon told me back in May of 2016, the Scalia-less court was condemned to function as a deeply dysfunctional one.
“The Supreme Court will often send cases back to a lower court without rendering a detailed opinion if questions or facts emerge during oral arguments before the court that the lower body simply didn’t consider,” Fallon said. “[But] there’s every reason to expect that if the court had simply decided the issue, they would have been divided four to four, and they don’t want to do that if they can help it. … They are taking this alternative and unusual route to try to avoid simply dividing 4–4 and leaving the courts of appeals and the law in the state of uncertainty.”
That uncertainty matters. The Supreme Court was effectively restored to normalcy following the appointment of Justice Neil Gorsuch in April of 2017, but it didn’t last. Following Justice Anthony Kennedy’s retirement announcement on June 30th, the Trump administration stated its intent to immediately nominate a new justice before the coming mid-term elections—an effort that flies in the face of Senate Majority Leader Mitch McConnell’s explanation behind his thwarting of Garland’s nomination under President Barack Obama: that the “the American people should have a say in the court’s direction.” With the departure of Kennedy, the long-time swing vote of the bench, Trump has the chance to shape the course of the Supreme Court for generations. Reflecting on his obstruction of Garland’s nomination, McConnell said it marked the “most consequential decision of his political life.” But McConnell’s maneuver, while tactically beneficial for Republicans, is strategically disastrous for the nation, because—above all else—it creates a trust issue.
Public polling shows trust in the Supreme Court is at its lowest since 2011. If the public can’t trust the Supreme Court to fulfill its jurisprudential role of saying what the law is, then it can no longer fulfill that role—and without that moderating influence, it makes the potential for the cracks in the executive and legislative branches to give way to a full-blown constitutional crisis. If the Supreme Court does not hold, then things really fall apart.
In his 2005 book America’s Three Regimes: A New Political History, the historian (and my grandfather) Morton Keller offers an unusual new way of looking at American political history. A scholar of American institutions and bureaucracy, Keller lays out a historiography based on the world’s institutional and administrative systems (“regimes” in shorthand): the “deferential-republican” regime, which ran from the early days of the original British colonies to the election of Andrew Jackson in 1828 and embraced Republican rule with a strain of the social hierarchies that emerged over two centuries in the New World; the “party-democratic” regime, which birthed America’s current democratic two-party system and effectively scaled along with the expanding social and political landscape through the 1930s; and the “populist-bureaucratic” regime, where courts, media, and advocacy groups increasingly vie for a piece of the post-New Deal welfare state.
(Photo: Oxford University Press)
The through-line in the evolution of American government, according to Keller, is the decentralization and distribution of political power, from a handful of traditional social hierarchies, to two established political party machines, to the milieu of advocacy organizations and private interests that jockey to shape the outcome of each election. Keller’s progression of American regimes captures the logic of democratic governance as such: A dictator will remain a dictator for as long as he can until his subjects rise up, after which he’ll buy them off with either economic resources or a perceived share of political power. The more social and economic upheaval, the more political power becomes distributed among the masses; the expansion of the electoral franchise to African Americans and women is just one historical example.
What does all of this have to do with Trump and the Supreme Court? When he wrote America’s Three Regimes in 2005, Keller believed we were still in the third regime despite the incredible transformation wrought upon the U.S. government by the September 11th attacks (see: the Department of Homeland Security and the War on Terror). But the Trump era suggests that we’re actually on the verge of the fourth regime. Call it the “multitude-megalomaniac” regime: Rather than seeing an expansion in the traditional institutional and administrative channels of American governance to afford more political power to citizens, the rise of digital connectivity and social media more broadly has provided an ecosystem in which the institutions of government are no longer the only channels by which to exercise political power.
This is, without a doubt, the nature of politics today, where so much of most political news coverage in a given day is centered on the social implications of elected officials’ tweets. And again, Trump rules not by legal decree, but a parallel system of political pressure unleashed in a single tweet. Social media has given us the unprecedented ability to bypass the conventional political institutions; where the previous three regimes saw the channels of political power gradually expand, they’re now rendered weaker than ever under the flood of the multitude.
Given the rapid acceleration of communications technology, the transition from third regime to fourth was somewhat inevitable. And in this context, the Trump administration’s assault on existing political institutions makes sense. Trump, whose rise was built on mobilizing those on the fringes of the American political establishment through Twitter and Facebook, isn’t just railing against “the swamp,” he’s simply doing everything he can to ensure that the platforms that launched him to power reign supreme. He understands the politics of the multitude-megalomaniac regime simply because, well, he is the multitude-megalomaniac regime.
What Trump doesn’t realize, however, is that even the most extra-governmental modes of political organization eventually run up against the last. And while a conservative-leaning Supreme Court may offer the president the affirmation he needs during a constitutional crisis, without the legitimacy afforded by fair and impartial jurisprudence, the court will devolve into yet another institution worth abandoning—and with all three branches of the U.S. government hobbled beyond recognition, the fourth regime is here to stay.
