How judicial augmentation of presidential power makes our democracy vulnerable.
President Trump’s attacks on the press as enemies of the people and his call to “lock-up” his political opponent in the 2016 election made me realize that Trump’s election endangered America’s democracy. I felt the need to understand more deeply the nature of our vulnerabilities to democracy loss, which led me to study democratic decline in Turkey, Hungary, and Poland and write the Spector of Dictatorship: Judicial Enabling of Presidential Power ».
While President Trump has now left office, America’s democracy remains vulnerable and under attack. A comparative constitutional perspective helps us better understand the nature of the threats we face. In particular, The Specter of Dictatorship helps us appreciate the danger lurking in the Supreme Court’s support for increased presidential power.
Historically, elected authoritarian leaders have subdued democracies, in part, by taking full control over the executive branch of government, firing neutral experts and political opponents, and peopling the executive branch with their supporters. Once they have control, they use it to undermine the rule of law, tilt the electoral playing field, and shrink the space for public debate. For example, Hungary’s autocratic prime minister, Viktor Orbán, uses prosecutorial authority to protect corrupt supporters and unleash unjustified investigation of political opponents. His government uses partisan gerrymandering and restrictive voting requirements for expatriate Hungarians to cling to power. All of these countries use economic pressures to do in opposition media, and Turkey has supplemented that with jailing of opposition journalists. Centralized control over the executive branch facilitates this. The Supreme Court and some scholars, however, support the unitary executive theory, which endorses complete presidential control over the executive branch, even though it provides a proven pathway to autocracy.
In June, the Supreme Court took another step down the path toward making the executive branch vulnerable to authoritarian manipulation by striking down for cause removal protection for the head of the government agency that regulates Fannie Mae and Freddie Mac (federal guarantors of home mortgages). That case, Collins v. Yellen, follows in the footsteps of a ruling a year earlier striking down similar protection from arbitrary dismissal aimed at ensuring the independence of the Consumer Financial Protection Bureau (CFPB). But Collins goes further. The CFPB case insisted on a presidential right to fire the agency director because the CFPB performed executive functions, while preserving prior precedent upholding independent commissions on the grounds that commissions frequently perform legislative or adjudicative functions. Collins, however, declares that the function agencies perform doesn’t matter, calling into question the precedent supporting independent commissions—including the federal commissions that supervise elections and the media.
The Court’s recent opinions tend to glorify the President’s political control over agencies as a force for faithful law execution and democratic accountability. But neither the dissenting Justices nor the majority in the Court’s recent removal decisions consider how a President with political control over government agencies can use that power to undermine the rule of law and entrench himself in power. That oversight is remarkable, because President Trump regularly removed officials in order to undermine the rule of law and defeat accountability.
These cases illustrate another of the book’s themes—the tendency of the Supreme Court to ignore limits on its own jurisdiction when an opportunity to expand presidential power presents itself. That tendency was evident as far back as the Chadha case in 1983, when the Court struck down the legislative veto that Congress had placed in numerous statutes to enable it to check abuse of delegated statutory authority in spite of a lack of adverse parties. Similarly, in Seila Law and Collins, there was no case or controversy, because the Trump administration and the plaintiffs both wanted to undermine agency independence. The Court allowed the case to proceed anyway, appointing an amicus to argue for the preservation of agency independence.
And in Collins, the Court creatively worked around statutory limits on its jurisdiction as well. Collins arose from a suit by shareholder in Fannie Mae and Freddie Mac, and a statute barred judicial relief in cases brought by shareholders. The Court evaded that limitation by declaring that all Americans share an interest in maintaining the separation of powers, since it protects liberty. The Court thus avoided treating the shareholders that wanted to challenge the independence of a government agency as shareholders.
The Specter of Dictatorship also shows that political control of electoral commissions by the head of state and his party can lead to the downfall of democracy. Most of the commentary on new restrictive election laws in Georgia and other states characterize them as creating a new Jim Crow, emphasizing voting rights restrictions. But political organizing might overcome these impediments. Readers of the Specter of Dictatorship may realize that provisions providing for partisan takeover of election commissions pose an even greater danger to our democracy’s survival than burdens complicating voting. Hungary, Poland, and Turkey, like the U.S. states and almost every functioning democracy, had independent or multiparty electoral commissions when they were fully democratic. The authoritarians and the parties supporting them entrench elected leaders in place partly be creating partisan control over electoral commissions. It does not matter how many votes the candidates supporting democracy get if the party supporting autocracy can control the vote counting, just ask the citizens of Belarus, who voted out an autocrat only to face falsification of voting results by the ruling party.
Trump’s exit has given democracy a respite. But the political and structural changes needed to destroy democracy—partisan division, a unitary executive, the undermining of independent institutions like bipartisan electoral commissions—march on. We may be one election away from losing our democracy permanently. It would be sad if the Supreme Court, an institution charged with defending the Constitution, ended up playing a significant role in the demise of the American democratic experiment. But it has been undermining democracy for some time, and its recent decisions on presidential power suggest that the Court may do more to make democracy vulnerable to destruction if Trump or some other autocratic presidential candidate wins or steals an election any time in the future.
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