Category Archives: Trump

a pluralistic 250th

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As the 250th year of the republic begins, I am not in a celebratory mood. Our current political crisis is the worst since 1877, the end of Reconstruction. The government is violating core republican principles; and to some extent, this is happening because of flaws in American culture and civil society.

Still, the United States is a community, and communities can mark auspicious dates. America’s 250th anniversary events need not celebrate our national leaders or claim any kind of superiority for our political history and system. The year can be a celebration of our people, by our people, in all our diversity. We can mark the 250th in a pluralistic way, with many local communities, groups, and institutions expressing how they understand the moment–not in a centralized way determined by the White House. In that case, the 250th will be an opportunity to contest the meaning of America, and such contestation is the best of our tradition.

My friend Rev. Dr. Willis Johnson writes: “Personally, I’m drawn to the notion of bearing witness, not just to what is, but to what ought to be. Independence Day, in its best form, should be an act of collective remembrance and recommitment, not just a party. We need to remember that freedom is not static, nor is it evenly distributed. We need to recommit to the labor of making liberty real for everyone, especially those for whom the promise of independence still rings hollow.”

I am old enough to remember the Bicentennial, albeit dimly. The official American Revolution Bicentennial Administration organized some of the events. President Ford presided over a nationally televised fireworks display and reviewed the sailing ships that had gathered in New York Harbor from aboard a naval vessel.

But there were also many local and nongovernmental events, including some protests. The image with this post illustrates an environmental protest in the Boston Harbor that marked the 200th anniversary of the Tea Party. Even the Tall Ships were organized by a nonprofit.

To the extent that the celebrations appeared unified, it was mainly because of the political context. Two centrist presidential candidates, Ford and Carter, were competing to unite the country after the traumas of the previous decade. Nixon had resigned in 1974; Saigon had fallen in 1975. This meant that Watergate and the war were now definitively over, and Americans could hope that a less contentious period was starting. The national government did not create a unifying moment, but the country was in a relatively unified mood.

Such is not the case today. The official national effort, America250, has “announce[d] a monumental celebration, kicking off a new era of American greatness, featuring special remarks by President Donald J. Trump. This kick-off event will take place at the Iowa State Fairgrounds, offering patriotism, excitement, inspiration, and a glimpse into the grand festivities planned for America’s 250th anniversary.”

Even people who support Trump need to recognize that many fellow citizens oppose him, and any kind of ceremony that focuses on him and invokes MAGA concepts will provoke opposition. In my view, such conflict is the most appropriate celebration of a free people, born in rebellion and accustomed to free speech and debate.

Rev. Johnson concludes, “In my heart, I still love my country. I love its messiness, its stubborn hope, its capacity to surprise. To love America means abstaining from turning a blind eye to its wounds. Loving our dear republic means asking hard questions at the cookout. Above all, love of country requires telling the truth—about the people still locked out of the celebration, about the freedoms that remain unfulfilled, about the dangers of settling for easy myths.”

There is little hope that America250 will tell these truths, but it doesn’t own the anniversary. The American people have an opportunity to celebrate our diverse community and to recommit to self-government.

repairing the damage of federal actions

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The Trump Administration often targets specific organizations and individuals for deliberate harm. For instance, Donald Trump said, “Harvard is treating our country with great disrespect, and all they’re doing is getting in deeper and deeper and deeper. They’ve got to behave themselves.” He said this while his administration was canceling up to $3 billion in contracts with Harvard, subjecting the university to at least eight different investigations, and blocking foreign students from attending–actions that could cost the university more billions.

If any private actor caused such damages, it would be subject to a tort claim and would face damages if it lost in court. If Congress passed a law targeting a specific entity, that legislation would violate the Bill of Attainder clause of the US Constitution and would be struck down.

However, the executive branch can violate a basic principle of the rule of law by acting against an individual or entity and face only the risk that its actions will be stopped. The government risks no penalty for persecuting a target, and there is no provision for the victim to win damages. This is because the Sovereign Immunity Doctrine generally shields the government and its officials from civil liability, and the Federal Tort Claims Act carves out very modest exceptions. (See this explanation by Glenn C. Altschuler and David Wippman.)

There is, however, a solution. Congress could pass a law enabling organizations and individuals who were persecuted in certain ways to seek damages in federal court. Victims’ rights could be made retroactive so that they could sue the government in the future for damages being caused now–or, indeed, for damages caused by Trump’s predecessors. If it’s really true that Obama took executive actions to bankrupt coal companies, then those companies might have a case, because such actions would bypass due process. I am skeptical that this claim is valid, but it could be assessed in court.

The goals would be: (1) to repair some of the damage incurred by the many victims of federal actions, and (2) to reinforce rule of law by creating a cost for the government when it targets organizations or individuals and harms them without due process.

I am fully aware that a Republican Congress would not pass this law, and if it did, Trump would veto it. But I think it is important to begin identifying specific priorities for the period of repair that must follow Trump. (See also “a generational call to rebuild” — on the opportunity to reconstruct the federal civil service.)

democracy’s crisis: a system map

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The graphic that accompanies this post shows 16 explanations for democracy’s current crisis for which I think there is persuasive evidence. The arrows indicate significant causal relationships among these factors.

The details are entirely debatable. The main point of this model is to suggest a mode of diagnosis and prescription that is different from the root-cause analysis that often drives movements for political reform.

Imagine, for example, that the root cause of democracy’s dysfunction were economic inequality, driven by a competitive global market. In that case, a political party with a credible plan to combat inequality might represent a solution. The best strategy would be to support that party in elections.

Or imagine that the root cause were partisan polarization. In that case, it would be better to support moderates in the existing parties and promote reforms that would favor centrist candidates.

Or imagine that the cause were the arrogance of progressive elites; then a right-populist movement might be the solution.

I believe that all of these factors (and more) are causes of democracy’s crisis, meaning that there is no “root” cause. Because they are heterogeneous, it is unlikely that any ideological party or movement could address them all. And because they are interlinked, solutions must address many points.

Fortunately, democracy is not a tool meant for a single problem, as a hammer is designed to pound objects that resemble nails. Democracy means “coordinated efforts to solve problems that emerge as we navigate the natural and social world” (Knight & Johnson 2014, p. 20). Democracy requires pluralism and fallibilism about all ideologies and causal theories. Further, democracy is polycentric. We can find it not only in legislative chambers but also on news websites and in community meetings, interactions between agencies and citizens, and in the streets.

We should not hope for any entity, movement, or leader to remove the underlying cause of democracy’s distress so that it can function better. Instead, many people, organizations, and institutions must address the many causes of democracy’s dysfunction.

This would seem an impossibly tall order, except that many are already at work on the various troubles. A map like fig. 1 is meant to orient and motivate diverse actors and activities.

More detail on these factors is here: 16 colliding forces that create our moment. See also: What our nation needs is a broad-based, pro-democracy civic movement;

what is the basis of a political judgment?

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I believe that Donald Trump is an example of a right-wing populist authoritarian, akin to Orban, Modi, and even Putin. I see looser affinities with 1930’s fascists–not Hitler, but Vichy France or Hungary after 1931. I believe that Trump and leaders like him threaten democratic and (classical) liberal values.

This post is not about those claims but about how we should justify and assess any judgments of this type. My view of Trump is certainly contestable. Some of his defenders emphasize his democratic legitimacy. Some of his critics observe prominent continuities with previous US presidencies, which have also extended executive power and mistreated migrants and people overseas. On the other hand, some people are even more alarmed than I am and equate the current administration with an actual fascist regime.

I found a great letter from Hannah Arendt to Karl Jaspers in which she suggested that McCarthyism, which was then in full swing, resembled fascism. Her letter is on the website of The Brooklyn Rail, which comments on the “astonishing similarities between the McCarthy era and the present.” I agree–if the present is 2025. But The Brooklyn Rail posted this letter in March 2006. I would not have described the final quarter of the George W. Bush administration as a time when legality was breaking down “disastrously.” I am not even sure that Arendt was right in May 1953, because the McCarthy era would peak the next year, and the Civil Rights Movement and Free Speech Movement were on the horizon.

The question is how we should make and assess any such judgments. I perceive that I am doing the following things when I make a judgment of Donald Trump:

  1. I am describing and interpreting the particular phenomenon. This is not deductive reasoning (applying a known definition to a case) nor inductive reasoning (generalizing across many cases). Both are relevant to a degree, but the key question is how to characterize the particular case, which is unique in many respects. The reasoning is “particularist.”
  2. I am thinking about the whole case and how Trump’s various actions, appointments, and statements fit together. When ICE abducted our beloved student at Tufts, that action was cruel and wrong but not, per se, right-wing authoritarianism. What made it politically alarming was the intention behind it and how it fit with other assaults on political dissent. Because I am connecting concrete things into one larger structure, my reasoning is “holistic.”
  3. I am considering Trump in the context of previous US presidents and similar leaders around the world. He is both similar and different from other cases, and the analogies and differences are relevant. They display family-resemblances rather than belonging to sharply defined sets. Thus my reasoning is “contextual.”
  4. I consider other people’s impressions of Trump. I am not mainly interested in a statistically representative sample of opinions (although I do follow polls), but rather in selected views that I judge to be insightful. They tilt strongly against Trump but encompass some diversity. If I alone thought that Trump posed an existential threat to democracy, I would have a reason to doubt my eccentric view. I find reinforcement in sober, well-informed commentary by others, but also occasional challenges. My reasoning is “social.”
  5. I am drawing on experience. For instance, since institutions like universities and medical systems have treated me well, I am prone to trust them and to oppose attacks on them. I am one of many for whom the abduction of Rümeysa Öztürk triggers deeply ingrained images of secret police and concentration camps, which are not personal memories for me but transmitted lore. I realize that I would react differently if my experiences had been different–for instance, if I had always been excluded from universities or if the US government had already mistreated my community before Trump. I try to treat my accumulated experiences as valid yet incomplete. Judgment is inevitably and helpfully “experiential.”
  6. I am concerned with this case because I want to know what I should do as a US citizen and what I should think about others’ behavior. The question is what is right for me and us to do. Judgment involves moral concerns and motivates action. Even my concepts have normative bases. For instance, it is from a liberal value framework that I present Trump as illiberal. If I were less committed to liberalism, I would describe him differently. In these ways, my reasoning is “ethical.”

So I would propose that political judgments should be Particularistic, Holistic, Contextual, Social, Experiential, and Ethical. (PHEESC, if you like pronounceable acronyms.)

My judgment is not subjective in the sense that I just happen to have certain opinions. I am accountable to others for my judgments–for whether they are wise and whether my actions match them. In a debate about my judgments, I would have many things to say, although I am also obliged to listen.

This is not science, in the sense of deductive and inductive reasoning or the testing of falsifiable empirical hypotheses. Empirical evidence is relevant but is only one aspect of judgment. Indeed, I think that a narrow understanding of rationality as science is one impediment to developing wise judgments. In a later letter to Jaspers (Dec. 29, 1963), Arendt wrote, “Even good and, at bottom, worthy people have, in our time, the most extraordinary fear about making judgments.” This is partly because they equate judgment with mere opinion.

The wisdom of judgments becomes clearer after history unfolds. For example, I think that events after 2006 challenged The Brooklyn Rail’s suggestion that the US was then sliding into fascism. Of course, they couldn’t know what would happen next.

Unfortunately, we must make judgments in the stream of history. In turn, history will judge us for what we thought and, more importantly, for what we did or failed to do.

See also: don’t confuse bias and judgment; explaining a past election versus deciding what to do next; notes on Hannah Arendt’s On Revolution; Reading Arendt in Palo Alto; why ambitious ethical theories don’t serve applied ethics etc.

rule of law means more than obeying laws: a richer vision to guide post-Trump reconstruction

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The Trump Administration flouts the rule of law by denying its obligation to obey statutes and court rulings. On April 22, two TIME magazine reporters drew Trump’s attention to a portrait of John Adams that he had “put in” the White House. They quoted Adams to the effect that a republic is a government of laws, not men. Trump had never heard of this quote and said, “I wouldn’t agree with it 100%. We are a government where men are involved in the process of law, and ideally, you’re going to have honest men like me.”

This is the present crisis. However, rule of law means more than obeying explicit laws, and it had been weakening for many decades. Here I will present Trump’s current administration as the most recent stage in a disintegrative process that began in the 1960s.

Law should take the form of rules that are general, durable, transparent, coherent, chosen in legitimate processes, consistently applied, and anchored to principles. The principles that motivate laws may be good or bad, which is why rule of law is insufficient for justice. (We also need good laws). However, rule of law permits people to plan, it provides important forms of fairness, it frustrates outright corruption, and it makes government accountable. When rule of law prevails, but the actual laws are unsatisfactory, we can work to change them. When there is no rule of law, we have little recourse.

Generality, durability, transparency, legitimacy of process, coherence, consistent application, and principle are relative terms. It is impossible, for example, for laws to be perfectly general. They should not be so durable that they persist when circumstances change. Instead of exemplifying any single principle, laws may balance conflicting principles along with practical constraints.

Nevertheless, rule of law is a guiding ideal for republican government. More importantly, a good political system creates incentives for the players to promote rule of law. In contrast, a corrupt system rewards biased enforcement, ad hoc exceptions, back-room deals, short-term arrangements, impunity, and other violations of rule of law.

You can tell that 21st century America neglects rule of law from our dependence on executive orders instead of laws, regulatory rulings instead of statutes, and budget deals instead of legislation. As I’ve noted before, the federal government still addresses carbon emissions under the Clean Air Act of 1970 and social media under the Telecommunications Act of 1996. This is because Congress has been incapable of passing major statutes, liberal or conservative.

Trump lacks any compunction about governing by decree (often on the social media platform that he owns) and has signed fewer statutes than any modern predecessor in his first 100 days. His attitude is unprecedented, yet he represents the third of three stages of decline.

Theodore Lowi’s great book The End of Liberalism: The Second Republic of the United States (first edition, 1969) already described the first two stages.

The first stage was exemplified by some of John F. Kennedy’s speeches. JFK was neither original nor very influential, but he expressed the prevailing midcentury modernist view of US politics. Kennedy declared that Americans had reached consensus on the grand questions. Both national parties were ostensibly committed to Keynesian economics, Social Security, desegregation, and the Cold War. However, said Kennedy, issues had become complex, and therefore governance should be delegated to non-ideological agencies with lots of expert staff who could manage all the particular issues that would arise.

As the New Frontier turned into the Great Society, the executive branch vastly expanded, but Congress stopped passing landmark statutes, and power shifted to appropriations committees and budget negotiators, rulemakers in the executive branch, Senate confirmation hearings that determined who could serve as regulators and judges, and courts, not only in the judiciary but also within the executive branch. Donohue & McCabe (2021) write, “as of March 2017, more than 1,900 administrative law judges (ALJs) were serving in at least 27 adjudicatory bodies, with their specific roles and responsibilities reflecting those of the agencies and departments in which they were located.”

Meanwhile, the 1960s had exploded the Kennedy-era consensus about basic issues. Social movements of left and right mobilized, competing to change society through the expanded federal government. From the 1960s through the Biden Administration, urgent debates roiled civil society, but the mechanisms of government remained negotiation and regulation rather than lawmaking.

For Lowi, the Occupational Safety and Health Act (OSHA) of 1970 exemplified this shift. Congress did write and pass OSHA, but “it did not attempt by law to identify a single specific evil that the regulatory agency was to seek to minimize or eliminate.” Instead, Congress vaguely endorsed the idea that, “so far as is possible every working man and woman in the nation [shall have] safe and healthful working conditions.” Congress gave the Department of Labor the power to issue actual regulations, subject to constant revision and negotiation, some of it before the Occupational Safety and Health Review Commission, which is a tribunal in the executive branch. This is not rule of law.

One result is that social movements have usually broken like waves on the shoals of the administrative state, leaving lots of small and inconsistent regulatory actions to reflect their ideals. The women’s movement, the gay liberation movement, and the Movement for Black Lives made discernible impressions on executive branch policies without enacting major laws. A side-effect is that social movements now benefit more from expertise inside the Beltway than from grassroots mobilization.

The third stage is Trump’s. Until he won office, a system that had neglected rule of law was nevertheless, in my opinion, usually used for benign purposes, at least for domestic policies outside of some aspects of criminal law. But this system was waiting to be hijacked by someone without principles. This is what we observe right now.

As Trump’s popularity plummets, the odds of a post-Trump reconstructive period are rising. We should not be thinking about how to restore the processes of 2022 (or 1990) but how to revive rule of law, properly understood.

For me, the three main strategies would be:

  1. expand the capacity of Congress to legislate;
  2. restrict the discretion of the president and executive branch; and
  3. codify the procedures of the administrative agencies and the rights of the civil service so that these become appropriate and coherent.

These strategies must be accomplished together, because, for example, to restrict administrative agencies without enabling Congress to legislate will just hamper government.

More specifically, I would favor: substantially more funding and staffing for congressional offices and committees; state-level electoral reforms, such as ranked-choice voting, which may encourage members of Congress to legislate instead of grandstanding; court rulings or (if necessary) a constitutional amendment clarifying the president’s obligation to execute statutes and making that obligation enforceable; substantial reforms of administrative law and the civil service; a general shift to taxing-and-spending instead of regulation to accomplish progressive goals; and legal repercussions for the Trump appointees who are currently violating laws.

See also: beyond Chevron; 16 colliding forces that create our moment; on the Deep State, the administrative state, and the civil service; and on government versus governance, or the rule of law versus pragmatism (2012).