An assessment of institutional democracy at the onset of the Trump administration.
Since his election to the US presidency on November 8, 2016, there has been much discussion as to whether Donald Trump is a rising authoritarian strongman who will bring the downfall of liberal democracy in the United States. Has this commentary been hyperbolic? While there are legitimate concerns regarding his presidency, are America’s democratic institutions healthy enough to impede the policy agenda of Trump and his far-right administration?
In order to explore these questions and accurately assess the state of America’s structural democracy at the 100-day mark of the Trump administration, this article uses Assessing the Quality of Democracy: A Practical Guide by the International Institute for Democracy and Electoral Assistance as a source for required institutions in liberal democracies. To limit the analysis, the article only considers actions and occurrences since President Trump’s inauguration on January 20, 2017. As such, there is no analysis of campaign rhetoric or the 2016 US election. The following institutions are addressed below: transparency mechanisms, the legislature, the judiciary, the security sector, the media, political parties and civil society.
Transparency is the ability for citizens to know the actions of government, how tax dollars are spent and who benefits from governmental actions. This broad concept is a crucial element of democratic governance. Ideally, citizens should have access to information on the performance and decisions of politicians in order to cast informed votes in the next election. In the US, there exist various reporting and transparency requirements in administrative law, along with the Freedom of Information Act, designed to keep the public apprised of government action. Without legal transparency mechanisms, the public can easily be kept in the dark with respect to corruption, self-interested deals and the funneling of tax dollars to friends and family.
The first 100 days have seen Trump break with traditional, but not legal, transparency mechanisms: he is the first elected president since Richard Nixon to not release his tax returns, he refuses to disclose who meets with him at the White House, and he has ignored US Office of Government Ethics recommendations to divest from his assets that present conflicts of interest with his role as president.
Whereas President Jimmy Carter famously placed his peanut farm in a blind trust upon assuming office in 1977, President Trump receives periodic updates from his son on the financial progress of his companies, to which he has financial access with no disclosure requirements. Notably, the president’s proposed tax code reforms would directly and significantly benefit his own companies.
This is not an abstract discussion for academics: In full, The Atlantic produced a detailed list of nearly 40 potential conflicts of interest between Trump’s government position and his private investments. The White House website has promoted the first lady’s jewelry line, a senior White House official potentially violated federal law by promoting the president’s daughter’s clothing brand in an official interview, and the State Department and several embassies circulated a blog post that was merely a detailed profile of Trump’s Florida property, Mar-A-Lago. On April 6, the Chinese government granted Ivanka Trump lucrative trademarks, the same day she met with the Chinese president in her capacity as the US president’s daughter — who also holds an official position within the White House along with her husband.
Neither Trump, his family, nor his staff have faced legal ramifications for any of the above actions. Continued corruption and co-option of state resources for personal gain can undermine the rule of law, creating a culture of graft and governance as a means of profit. However, at present, the US has insufficient mechanisms for combating corruption and enforcing transparency: the country has relied on informal traditions, voter discretion and an independent legislature to ensure America’s executive does not gain or distribute improper spoils from the public coffers.
Those mechanisms have failed. The US has no effective office at the federal level that is un-elected, nonpartisan and dedicated to monitoring the use of public resources and investigating corruption with subpoena power. While the attorney general should fill this role, the position is nominated by the president and, as Trump has shown with respect to acting Attorney General Sally Yates, can be removed by the president. Trump’s brazen corruption has exposed and exploited a weakness in America’s democratic institutions, one that should be mitigated as soon as politicians who are willing to do so are elected.
In democracies, the role of legislatures is clear: to create law, check the power of the executive and provide public debate and discussion as representatives of the citizenry. In a parliamentary system, the legislature can remove confidence in the prime minister and call for early elections. In the US, the bicameral structure requires that bills satisfy a variety of geographic constituencies before reaching the president’s desk, allowing the chief executive only the ability to sign or veto legislation. However, various national crises and wars in US history have allowed for more power to concentrate in the president’s hands. At present, US presidents take an agenda-setting role with respect to Congress, especially within the first 100 days when the president is often most popular.
As Trump is no mainstream, entrenched member of the Republican Party, he has found difficulty in keeping a sufficient governing coalition in areas such as infrastructure investment and the construction of a wall along the US-Mexico border. Real divisions exist among congressional Republicans; the failure to repeal the Affordable Care Act (ACA), a conservative rallying cry for 7 years, despite presidential support and majorities in both Houses, remains an important example of both Trump’s limited influence within Congress and the GOP’s internal divisions.
Trump has shown little respect for the legislature during the first 100 days, however. He has signed more executive orders, which do not require action by Congress, than any other president since World War II. And when the nonpartisan Congressional Budget Office provided estimates for the ACA replacement bill he supported, Trump attacked the assessment as, “just not believable,” lending no legitimacy or deference to a non-partisan source widely respected on both sides of the political aisle.
The most problematic occurrence with respect to democracy and the rule of law is Congress’ refusal to seriously investigate President Trump’s financial conflicts of interest or his campaign’s potential coordination with the Russian government. The sham of an investigation by the Senate Intelligence Committee had no dedicated full-time staff to the endeavor until April 24, more than three months after the investigation formally began, and only amid public and Democratic pressure. In the House of Representatives, little effort has been made to subpoena testimony or documentation with respect to Michael Flynn, Trump’s former national security adviser who failed to disclose payments from the Russian government. Congressional Republicans have spent much the first 100 days under a Republican president overlooking potential for corruption for foreign influence at the highest level of governance in favor of political loyalty and pet legislative goals. According to a poll published in The Wall Street Journal, the American people are not surprised, having little confidence that a Republican-controlled Congress can effectively act as an independent check against a Republican president.
While Congress may not have acted as a rubber stamp during the first 100 days of the Trump presidency, it has shown a problematic willingness to turn a blind eye to executive behaviors which, if unaddressed, can undermine the democratic foundation of the US federal government. The extreme partisanship that has led to this propensity must be addressed; otherwise, divided government will mean only gridlock and unified government will mean only blank checks for governmental malfeasance and corruption.
In a liberal democracy, the judiciary is tasked with navigating the tensions between a liberal ideal of inherent rights and the popular currents that ebb and flow within society. Ideally, judges are insulated from political consequence, theoretically allowing them to issue legally just decisions, irrespective of public sentiment or policies of elected officials. The judiciary generally maintains no armed force nor wins any election, requiring other political actors respect the institution itself instead of power or popularity. Without the respect, confidence and deference of politicians, government officials and citizens, the judiciary is merely a handful of lawyers in robes.
In the United States, the Constitution’s structure implies the ability for courts to rule government action unconstitutional, as detailed in Marbury v. Madison, 5 U.S. 137 (1803). While a vast majority of US history has seen Congress and the president respect those derived and implied powers, there have been exceptions. President Andrew Jackson famously ignored the Supreme Court’s attempt to protect Native American property in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), and Abraham Lincoln ignored the federal court decision Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487). More recently, the Warren Court period of the Supreme Court, from 1953 to 1969, regularly struck down governmental action in favor of individual liberties, seeking to limit discrimination based on race, national origin, religion or gender.
During President Trump’s first 100 days in office, the administration has shown no respect for the powers of judicial review outlined in Marbury v. Madison. After a federal judge issued a temporary restraining order with respect to his Muslim ban, Executive Order (EO) 13769, Trump referred to him as a “so-called judge” and the administration claimed “unreviewable authority” in the arena of immigration. The Court of Appeals affirmed the judge’s decision, leading to Trump’s veiled threat to “break up” the Ninth Circuit from which the ruling originated. Trump then issued a second Muslim ban, EO 13780, which was again blocked by federal judges, one from Hawaii. Thereafter, Attorney General Jeff Sessions stated: “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.” Slight toward Hawaii notwithstanding, this statement shows either a misunderstanding of or disagreement with the fundamental principle of American democracy that the judiciary can declare governmental actions unconstitutional.
In striking down the successive Muslim bans, as well as blocking an executive order removing funds from cities that are uncooperative with federal immigration enforcement, the judiciary has acted as intended: a protection of minority rights against the popular passions of the people.
Challenges to democracy remain, however: there are many areas of policy, called Political Questions, where the US federal judiciary traditionally refuses to weigh in. Further, in 2016, the Republicans took the politicization of the judiciary further than ever before with the refusal to even hold hearings on President Barack Obama’s nominee to the Supreme Court, giving Trump his first choice for adding to the court in Neil Gorsuch. However, despite Republicans’ general lack of respect for, or trust in, judges, the judiciary remains the most respected branch of the federal government among the general population, likely because judges are traditionally not overtly partisan.
As Trump cannot arbitrarily remove judges for dissent, and that the American people generally trust judges more than politicians, the judiciary remains a strong guarantor of democracy for the US.
One way in which democracy can be imperiled is through the weaponization of the security sector. The military and law enforcement agencies have, in various authoritarian and failed democratic contexts, become either politicized or turned against specific groups in society which have drawn the ire of the chief executive. Further, without civilian control over the military, popular generals have engaged in coup d’états in otherwise democratic states. Intelligence agencies have surveilled on opposition leaders to either expose or fabricate wrongdoing, and police forces have targeted unpopular or minority groups as part of a broader authoritarian agenda.
During the first 100 days, the US military has shown promising developments for the maintenance of democracy. Secretary of Defense James Mattis has contradicted the president on several occasions with respect to issues such as the role of the media, selecting Pentagon staff and the existence of global climate change. A career military man, Mattis seems to understand the institutional and limited role the US Army plays in maintaining and protecting American democracy. If Trump has any intention of utilizing the military domestically in a direct threat to democracy, there is no evidence it would happen on Secretary Mattis’ watch.
Nonetheless, Trump has shown some troubling domestic intentions for his use of America’s broad and expansive security sector, such as threats to the traditional insolation of the FBI and CIA from White House intervention and political meddling. Trump aides have unethically and potentially illegally intervened in ongoing investigations of Trump’s presidential campaign, troubling and ongoing concerns that must be monitored has his presidency continues.
Most troubling, however, was the vague language of his Muslim ban executive orders, which gave little guidance to officers on the ground, or their supervisors, on how to properly enforce the order within existing constitutional limits of search and detention. Further, as the unions representing Immigration and Customs Enforcement (ICE) agents and border patrol officers endorsed Trump early in his candidacy, many individuals tasked with enforcing the policy were fully onboard with Trump’s xenophobic messaging, empowered to carry out the intention of Trump’s policy. As accounts of abuse by federal agents of legal permanent residents, tourists and some non-white citizens bubbled from the terminals of international airports around the nation, Trump offered no enforcement guidance or condemnation. Even after a court order enjoined the Executive Order, officials continued to enforce Trump’s wishes, likely in violation of federal law.
Over a month later, episodes continue to surface of Customs and Border Protection (CBP) agents acting beyond their constitutional authority — met only by the administration’s desire to decrease hiring standards in order to increase the number of CBP agents on the ground. Importantly, by not making law enforcement policy in a centralized manner high in the chain of command, Trump allowed for the intent of the language to be interpreted later by individuals on the ground tasked with enforcement. This chaos and discriminatory application was not a glitch in Trump’s policy, but rather a crucial aspect in how it was intended to be enforced.
If any doubt existed that the Muslim bans were created with the intention to incite nationalistic animus, Trump has provided further evidence: he issued an order requiring the Department of Homeland Security (DHS) to “make public a comprehensive list of criminal actions committed by aliens,” created VOICE, an office dedicated to providing information about illegal immigrants who have committed crimes, and habitually ignores terrorism committed by white people.
Journalism’s position as the only profession mentioned in the US Constitution is representative of its uniquely important role in liberal democracy. A press, free of both imposed- and self-censorship, is required to uncover wrongdoing, inform citizens of government performance, engage in policy debates that inform voters and hold officials accountable for their actions. Because of this, the Supreme Court has recognized broad protections for the press under the First Amendment. While the press experiences at least some friction with all presidential administrations, journalists in the US have generally enjoyed relative freedom to pursue their stories.
However, both before and during the first 100 days in office, the Trump administration has been openly antagonistic toward the press. The White House Correspondents Association has been forced to advocate more with this administration than any other in recent memory for the ability to ask questions required to function as independent checks on the government. The president has such open contempt for any criticism that, according to nine First Amendment experts, the administration’s barring of credentialed press from a press briefing based on editorial viewpoint may have violated the Constitution.
As of this writing Trump has tweeted the phrase “fake news” 30 times since taking office, aimed at any organization or story that may be critical of the president’s narrative. In fact, the president described the “intent” of The New York Times to be “so evil and so bad.” But most alarmingly, at the Conservative Political Action Conference, Trump referred to the media as the “enemy of the people” and his chief strategist Steve Bannon referred to them as the “opposition party.”
While the US Constitution has not changed, gone are the days of emperors and revolutionaries who dramatically seize control of the state.
The likely goal of the White House is to undermine public trust in any article or organization that does not paint the administration in a positive light. “Any negative polls are fake news,” Trump tweeted on February 6. The president also threatened to “open up the libel laws” in order to sue news organizations. This was presumably uttered to intimidate journalists from publishing criticism, though a vast majority of libel law is found at the state level, far beyond Trump’s power to reform. Nonetheless, any attempts to limit press access or independence threaten an important pillar of democracy.
Despite the hostility, media organizations have challenged the president when the White House has repeatedly proffered spurious claims, though ideologically aligned outlets have furthered government statements uncritically. Many organizations have combated the fury of demonstrably false statements from the White House with fact checks within headlines themselves.
A less visible, though equally pernicious, threat to democracy is self-censorship: the act of rejecting, toning down or avoiding overtly negative reporting in the interest of future access, to avoid retaliation by officials or to satisfy readers. In Washington, where many journalists and administration officials know each other by first name, a reporter can easily justify self-censorship in hopes to maintain a contact or satisfy a risk-averse editor, especially under an administration that pays such close attention to critical coverage. However, in fear-based societies, self-censorship prevents the public dialogue and precipitates repression. If the press is to continue to provide Americans with an objective and critical understanding of the presidency, their coverage must remain “uninhibited, robust, and wide-open” in the interest of the health of our democracy.
Despite the general disdain for the two major parties among American voters, a political party system remains vital to modern institutional democracy. Parties allow for voters to easily understand a candidate’s stances on a wide array of issues, build capacity for civic engagement and hold other parties accountable for government abuse or overreach. Those roles can be compromised, however, if an executive can unfairly tip the playing field to advantage or favor one party above others, or co-opt the governing apparatus to serve the political interests of a particular party.
Regardless of having sweeping majorities in both Houses of Congress, President Trump has raised no notable concerns with respect to the existing party structure. While Trump has brought into his administration Reince Priebus, the former chair of the Republican National Committee, this is not unusual for American presidents so long as the aides formally hold no position within the political party during their White House tenure. The Democratic Party, while currently possessing little power in Washington, has seen a surge of candidates declare for the 2018 midterm elections — potential evidence of renewed energy among the party’s new base.
At present, both major political parties remain independent of the government and inappropriate regulation, such as election laws, ballot access reforms or targeted IRS action which disproportionately hinder or favor political parties unequally. No policies furthered by Trump at this time threaten the Democratic Party itself or favor the Republican Party as an organization. While there are drawbacks to having only two nationally effective parties, one clear benefit is they are likely too powerful for an individual to easily coopt or marginalize.
Civil society consists of formal and informal groups and organizations formed within a society that are fully independent of the structures of governance. Civil society need not be political: everything from your local chess club to the Boy Scouts of America count. As democracies require citizens to be independently active, be familiar with leadership positions and maintain a culture of power-sharing, civil society is viewed as crucial in creating and maintaining citizen participation in, and vigilance over, state governance.
The United States has a robust culture of civil society, but has been criticized since the turn of the century for calcifying in apathy. However, the Tea Party protest movement on the right, springing to life amidst the 2010 midterm elections, showed that grassroots ad hoc civil society in the US can impact governance at both local and national levels.
Since Trump took office 100 days ago, Americans have engaged in grassroots politics at a level not seen in a generation, with the possible exception of the Tea Party. The scene has mostly been in major cities, beginning with the Women’s March the day after Trump’s inauguration where over 2 million people flooded city streets, which has set the tone for nearly all events that have since followed. Following Trump’s Muslim ban, tens of thousands of Americans gathered in US international airports around the country to protest the executive order. Thousands of businesses in cities across the US closed on a declared “Day Without Immigrants.” In the weekends leading up to the 100-day marker, over 120,000 participated in the Tax March and hundreds of thousands for the March for Science, both occurring in cities from coast to coast. Elsewhere, usually routine town hall meetings for Republican lawmakers have been flooded with protesters. The American people are paying attention to Washington and are showing their frustration.
President Trump, for his part, has dismissed all of the above events as being fueled by “paid protesters,” exclaiming that the “election is over!” — similar to rhetoric used by the Obama administration in response to the Tea Party, though more forceful. However, Trump has gone further than Obama ever did; for example, he threatened the University of California, Berkeley with a withdrawal of federal funding when protesters forced the cancellation of an event featuring an alt-right speaker. Further, Trump’s inexplicable obsession with asserting demonstrably false accounts of the size of the crowd at his inauguration compared to that of Obama’s may be an intentional attempt to blur the lines between truth and falsity, ensuring his supporters trust White House claims above all others when he seeks to refute objective criticism.
There has also been a disturbing aspect to civil society under Trump: The country has seen an explosion of hate groups recently, emboldened by the president’s xenophobic and nationalistic rhetoric. White nationalist groups are becoming more open about their racist goals and are preparing for violence.
Taken as a whole, the president himself is in no way an ally of civil society and active public engagement. He sees dissenters as illegitimate agitators and publicly ignores the racism and crimes of his allies. However, despite these factors and the disturbing increase in hate groups around the country, the past 100 days have shown that citizens of all stripes in the US are paying close attention to their elected officials and are vocal to oppose them when they see fit.
The Road Ahead
In viewing the first 100 days of the Trump presidency with respect to America’s liberal democratic institutions, a worrying trend appears. The president himself, and those he surrounds himself with, has little to no regard for structural or conceptual limits to his office or his role as an employee of The People. Trump’s actions betray a desire to unilaterally exert control over much of the American body politic, a decidedly illiberal and undemocratic aim. More kakistocracy than meritocracy, however, this administration stands as much in its own way of cementing unilateral rule as any other segment of American political society. Its failure to court a broader range of the congressional Republicans and insistence on positioning both the judiciary and media as his enemies have neutered Trump’s potential to consolidating power. Judges, activists, journalists and minority groups have proven willing and able to marginalize the administration when necessary.
This should bring no comfort, as America’s democratic institutions must be updated for the 21st century if they are to prevent 21st-century authoritarianism. Trump’s first 100 days have shown that strong anti-corruption institutions, the legalization of transparency traditions, law enforcement reform and broader support for objective journalism are needed to enhance American democracy, to say nothing of needed electoral reforms regarding gerrymandering and campaign finance.
While the US Constitution has not changed, gone are the days of emperors and revolutionaries who dramatically seize control of the state. This outdated notion of authoritarianism has been replaced by a gradual erosion of public confidence in governing institutions, a growing cultural acceptance of corruption and increased incentives for self-censorship. While President Trump will not achieve these aims during his four-year term in office, without targeted reform the next authoritarian-leaning politician may lead America a step further from liberal democracy.
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
Photo Credit: Gage Skidmore