Last night, I was part of The United States at 250: A Tufts Faculty Panel. In a full room of students, Tufts historians and political scientists with various specialities addressed the question: “Where are we as a nation and what’s next?”
I offered the following argument. I have derived it from other people’s scholarship, and I am not sure it is true, but I think Americans should consider it.
We’re marking a 250th anniversary because 1776 began the period that concluded with our Constitution. However, the Constitution is now in a deep crisis. We may now be coming to the end of a 250-year period. The reasons are not named “Donald J. Trump.” These are three deeper reasons.
First, presidential republics have a fatal flaw, and none except the US–and arguably, France–has survived for a long period (Linz 1990). Whenever opposing parties control the legislature and executive, they are motivated to battle at the cost of the republic.
For most of our first two centuries, we did not have regular impasses, because the Democrats were divided into two major blocs, resulting in at least three effective parties in Congress; and most presidents could build a working majority. However, when conservative Democrats defected to the GOP, the two parties polarized. Since 1990, it has been possible to govern in the ways envisioned by the Constitution only when the same party has controlled both elected branches (6 periods of 14 total years). During the other 24 years since 1990, presidents have tried to rule by executive order and Congress has tried to undermine the current administration. We have moved ever closer to complete constitutional breakdown.
Second, the Constitution enacts three branches of government: the executive, legislative, and judiciary. Since at least 1932, we have actually had another branch: the administrative and regulatory agencies, staffed by about about 2.2 million federal employees who are understood to be insulated from politics. They follow rules, norms, and principles of their own that are not mentioned in the Constitution–for example, scientifically measuring the costs and benefits of proposed policies and publishing drafts of policies for public review and comment. Perhaps we have also had a fifth branch, the national security apparatus.
We muddled through for decades by pretending that the agencies were part of the executive branch while the White House usually deferred to them. Under a 1984 Supreme Court decision, Chevron, the courts also generally deferred to agencies’ decisions. Meanwhile, Congress intentionally gave agencies broad scope. The regulatory state was largely independent from the other branches.
However, in 2024, the Court repealed Chevron with the Loper decision, allowing courts to review agency decisions. And Donald Trump has fired and replaced many civil servants and members of so-called independent agencies for openly political reasons.
Libertarians argue that we shouldn’t have had a massive federal government in the first place. And populists of right and left argue that an elected president should be able to determine policies. A left populist may celebrate the opportunity for a Democratic president to reshape the agencies at will now that they have lost their independence. I think, however, that every country with an advanced economy has built an elaborate and quasi-independent regulatory apparatus that applies science and managerial acumen to generate benefits that voters want. We may not have that anymore.
Third, Congress no longer legislates, in the sense of passing or reforming substantive statutes. In 1965 alone, Congress passed at least 10 landmark bills that established agencies or dramatically altered national policies. As recently at the 1980s, Congress sometimes legislated by substantially cutting regulation. But Congress has arguably passed no major laws in this whole century so far.
For example, Congress has never passed legislation explicitly about the climate. Federal regulatory agencies have used 1970s Clean Air Act (written before Congress was really aware of climate change) to try to regulate carbon. Likewise, federal financial laws were passed before cryptocurrency; and the Telecommunications Act of 1996 still governs despite some minor new developments, such as social media and smartphones.
In sum, we can’t handle frequent periods of divided government; our massive regulatory state lacks a constitutional basis; and the branch in which “all legislative power” is “vested” no longer legislates.
It is possible that we will keep driving ahead, frequently bumping into the Constitution’s guardrails but somehow staying on the road for decades.
Or we could see substantial reforms–major constitutional amendments or new voting laws that change the basic structure. (For instance, proportional representation would transform Congress–for better or worse–and could be accomplished by law.) I sometimes wonder whether our incompetent and blatantly authoritarian president is a blessing, alerting people to the need for reform without successfully consolidating power.
Or we could see a collapse. The typical final act of a presidential republic is a soft dictatorship. That’s why this topic is important to discuss on our 250th.
Prophetic works include Juan J. Linz, “The Perils of Presidentialism.” Journal of democracy 1.1 (1990): 51-69 and Theodore Lowi, The End of Liberalism (1969). See also: rule of law means more than obeying laws: a richer vision to guide post-Trump reconstruction; on the Deep State, the administrative state, and the civil service; the Constitution is crumbling; etc.
