Chapter 1
Democracy dies in darkness, opines a great American newspaper, but it would be more accurate to say that it dies by degrees. Where constitutional democracy has been lost, it has been lost because political actors have broken its rules turn by turn to achieve some immediately urgent goal. Each rule breaking then justifies the next, in a cycle of revenge that ends only in the formal or informal abrogation of the constitutional order.
Constitutional democracy is founded on a commitment first and foremost to the rules of the game. The losers in any round of play agree to accept their loss, because they believe they will soon have another turn; the winners accept limits on their gains because they anticipate that next time they may number among the losers.
“Well, here’s the way I see it,” said President George H. W. Bush on the night of his reelection defeat in 1992. He repeated the phrase as he continued,
Here’s the way we see it and the country should see it—that the people have spoken and we respect the majesty of the democratic system. I just called Governor Clinton over in Little Rock and offered my congratulations. He did run a strong campaign. I wish him well in the White House. And I want the country to know that our entire Administration will work closely with his team to ensure the smooth transition of power. There is important work to be done, and America must always come first. So we will get behind this new President and wish him—wish him well. . . .
Now I ask that we stand behind our new President and regardless of our differences, all Americans share the same purpose: to make this, the world’s greatest nation, more safe and more secure and to guarantee every American a shot at the American dream.1
In the years since 1992, however, the game of politics has evolved more and more into a live-fire exercise. The end of the Cold War perhaps explains the intensifying ferocity of the competition: since 1990, national security concerns have mattered less to American elites. The slowdown in economic growth since the year 2000 and the shock of the financial crisis and the Great Recession have embittered politics too; when there seems less to go around, people quarrel more ferociously over what remains. Ill feeling over the Supreme Court decision that elevated George W. Bush to the presidency over Al Gore has never healed. Accelerating ethnic and cultural diversity raises the stakes while aggravating mistrust and resentment between Americans. The failures and mistakes of government policy since 2001—from the 9/11 attacks, through the Iraq War, through the weak recovery from the Great Recession—have swung the pendulum of power more rapidly from side to side, tempting each of the two parties to grasp for more while it can, conscious that the moment of opportunity will not last long.
However you weight those causes, the record of the consequences makes grim reading.
Item:
The Republican congressional majorities elected in 2010 arrived in Washington believing they carried a mandate for radical cuts in government spending and especially the early repeal of the then-new Affordable Care Act. President Obama, elected by even more votes in 2008, insisted he retained a mandate to defend the policies enacted by Democrats in 2009–2010. Who was right? Surely both. Yet rather than bargains and compromises, all-or-nothing politics emerged as the order of the day. In the summer of 2011, frustrated by their inability to impose their will on the president, Republicans in Congress adopted a desperate tactic. Unless Obama consented to large cuts in future spending, they would not authorize a rise in the US debt ceiling. In effect, this would result in a default on the debt incurred by past spending.
Debt ceiling fights had occurred often enough in sessions past. Back in 2006, then-Senator Obama had himself voted nay on a debt ceiling increase. But in those past fights, the congressional leadership had always ensured that there were sufficient votes to pass the increase before proceeding with the demagogic speeches opposing the increase. Using the debt ceiling vote as an opportunity for crass grandstanding was a venerable congressional tradition; using it as a weapon represented something startlingly new.
Republicans threatened national bankruptcy, and they reiterated that threat until an estimated forty-eight hours before the government of the United States lost the ability to pay its bills. It was not only the payment of interest on government debt that would have been jeopardized, but also the timely payment of every salary, every government contract, every obligation of every kind. The financial and economic consequences of the stoppage of payments by the largest purchaser of goods and services on planet Earth could not be calculated, could barely even be imagined. It would be a nuclear event—and Republican Party leaders were willing to threaten it not only once, but a second time again in 2013.
Item:
President Obama tried through his two terms in office to negotiate some kind of immigration deal that would include amnesties for most or all the people illegally residing in the United States. Congress rebuffed him, even when Democrats held the majority. Advocates for immigrants pressed the president to extend some form of executive protection to this unauthorized population. Again and again, Obama replied that he lacked the legal authority to do so.
I just want to repeat: I’m president. I’m not king. . . . I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as opposed to families who are just trying to work and support themselves. But there’s a limit to the discretion that I can show, because I am obliged to execute the law. That’s what the executive branch means. I can’t just make up the laws by myself.2
Sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself. But that’s not how a democracy works.3
We are doing everything we can administratively. But the fact of the matter is there are laws on the books that I have to enforce. And I think there’s been a great disservice done to the cause of getting the DREAM Act passed and getting comprehensive immigration passed by perpetrating the notion that somehow, by myself, I can go and do these things. It’s just not true. . . . We live in a democracy. You have to pass bills through the legislature, and then I can sign it.4
In June 2012, Obama abruptly reversed himself. Facing an election in which his strategists advised that Hispanic votes would be crucial, President Obama issued the very order that he himself had so repeatedly denounced as beyond his authority. In the long history of presidential overreach, there had never been a case like it: a president asserting a power that he himself while actually serving as president had forcefully and repeatedly condemned as unlawful.
The 2012 action deferred enforcement of the immigration laws against people under the age of thirty who had entered the United States before age sixteen, provided they had violated no other laws. This population was estimated at about 800,000 people.5 In November 2014, President Obama issued an even more ambitious order, this time deferring action against the parents of the beneficiaries of the 2012 order, enlarging the protected population to an estimated four million people.6
In June 2016, a 4–4 deadlock on the US Supreme Court would leave in place an appellate court’s ruling that Obama had indeed overstepped his powers.7 Yet Obama did not withdraw from his new assertion of power. He and his defenders argued that congressional inaction had left him no choice but to act alone. It’s a strange version of the Constitution that says the president gains greater power to say yes when Congress tries to tell him no. Pre-2012 Obama, by contrast, recognized that if Congress declines to enact a law, then said law is not enacted, and everybody including the president must live with the consequences. Post-2012 Obama had become more impatient with restraints on his power. Or, rather, his voters had become so, as we shall see in more detail in the final chapter of this book.
Item:
American politics has often enough been poisoned by conspiracy thinking. But there was something more radical and more far-reaching about the Birther hoax of the Obama years than in conspiracy fantasies of the past. (Birthers variously argued that Barack Obama had been born in Kenya, raised a Muslim, or did not qualify as a “natural-born citizen” because his father was foreign born.8)
You can multiply Boehner’s contortions endlessly.11 Party leaders personally rejected and derided the Birther hoax. They did not dare do so out loud where their voters and donors might hear.
Trump took himself out of the 2012 race in May of that year, but his early success was not overlooked. Mitt Romney sought his endorsement; other candidates emulated his methods in 2016. Asked whether Obama was a Christian at a press conference at a 2015 meeting of the National Governors Association, Scott Walker replied, “I don’t know. I’ve actually never talked about it or I haven’t read about that. I’ve never asked him that.”13
Nothing like this radical denial of the Americanism of a serving president had been seen since the Civil War era, if then. The denial also revealed that as the country diversified, its conservatives would insist ever more militantly that no matter who might reside within the United States, the country’s institutions and identity should belong only to those recognizably like them.
Item:
Supreme Court nominations have triggered political battles since the earliest days of the republic. But the rest of the federal judicial system had historically excited Americans much less. Patronage, not ideology, inspired the great majority of lower-court appointments, each party taking turns to reward friends and supporters.
That easygoing rotation has radicalized over the past two decades. The change is often dated to a 2001 article by Bruce Ackerman, a law professor at Yale. George W. Bush had been made president, Ackerman argued, only by the intervention of a conservative Supreme Court. If Bush then appointed further conservative justices, the court would be “packing itself.” For that reason, “when sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush.”14
Ackerman limited his boycott idea to the Supreme Court itself, but Senate Democrats did him one better. No Supreme Court vacancies opened in George W. Bush’s first term, but a great many appellate court seats did. In a closely divided Senate, Democrats successfully blocked the consideration of ten of these appointees—an unprecedented move.
Republicans struck back after gaining Senate seats in the election of 2004. They threatened to end the Senate minority’s power to filibuster lower-court judicial nominations. The two parties reached a deal. The appellate-judge filibuster was preserved in theory, but with an understanding that the minority would use it only in “extreme cases.” By then, the most controversial of the Bush nominees had removed themselves from consideration, so Democrats could score the exchange as a victory.
This backstory explains why Senate Republicans a decade later felt entitled to use unprecedented tactics of their own against President Obama’s final nominee to the Supreme Court, Merrick Garland. Republicans refused Garland even a hearing, never mind a vote, inventing a new principle against presidents nominating Supreme Court justices in their final year. The outcome of the 2016 presidential election then allowed Republicans to claim the open seat for one of their own, Neil Gorsuch, a grab that will be regarded by Democrats as justifying whatever revenge they can exact whenever they recover a Senate majority.
Item:
Republicans had pledged and pledged again to repeal and replace Obamacare. They fought the 2012 election very largely as a referendum on that issue. After the defeat, their Congressional leadership tacitly accepted that the issue had closed. They continued the fight anyway. Donors demanded it, and it energized the rank and file. But as Eric Cantor, then the number two House Republican, conceded in an interview published in July 2017, “To give the impression that if Republicans were in control of the House and Senate, that we could do that when Obama was still in office. . . . I never believed it.”15
But a great many others did believe it. These true-believing conservatives assumed that the party in which they had invested so much faith, energy, and money must have developed a plan to repeal and replace Obamacare, if and when the moment should arrive. So that moment did, or seemed to do, in November 2016: united Republican control of the federal government.
At which point it instantly became undeniable that the Republicans’ ideas for replacing Obamacare bubbled with toxicity.
Republicans had excoriated the Affordable Care Act for presenting middle-class taxpayers with increased premiums and heightened deductibles. Their own plans would lower premiums in the individual marketplace a little, for some, by raising deductibles a lot for just about everybody. This was not malice, just arithmetic. It was arithmetic too that reducing the federal government’s future contributions to Medicaid would drop millions of enrollees from the program over the next decade.
What goes around comes around. In 2017, House and Senate Republicans would try to jam through Congress a law every bit as far-reaching as the Affordable Care Act, without hearings, without debate, and (insofar as they could) without scores from the Congressional Budget Office. Ironically, while all attention was focused on President Trump’s raging and bullying, the most radical attack on American norms of governance in his first year was attempted not by Steve Bannon, Jeff Sessions, Anthony Scaramucci, or any other late-night demon, but by the regular Republicans of the House and Senate. Senator John McCain vividly described the legislative method of repeal and replace:
We’ve tried to do this by coming up with a proposal behind closed doors in consultation with the administration, then springing it on skeptical members, trying to convince them it’s better than nothing, asking us to swallow our doubts and force it past a unified opposition. I don’t think that is going to work in the end. And it probably shouldn’t.16
Some Republicans, including John McCain, have attempted to compare the methods of ACA repeal to those with which the ACA was enacted in the first place. Yet the original ACA was lengthily debated, examined in committee, and fully scored by the Congressional Budget Office. It represented not novelty, but a somewhat more redistributionist update of the health care reform signed into law in Massachusetts by Governor Mitt Romney and originally sketched at the Conservative Heritage Foundation in the mid-1990s, as a Republican alternative to the health care plan offered by the Clinton administration. Whatever other complaints might be brought against the ACA, nobody can say it was sprung on either Congress or the American people out of nowhere—or that senators lacked full information about its contents and consequences. ACA repeal, however, was pushed through Congress as a black box. The famous line of Nancy Pelosi’s—“We have to pass the bill so that you can find out what’s in it” (ripped from context in her case and distorted in its meaning by her opponents)—literally did apply to the repeal of the Affordable Care Act.
The failure of ACA repeal may deter future Congresses from repeating the smash-and-grab methods of the Republicans of 2017–18. But a sinister precedent has been set, and it will not be soon forgotten.
Item:
The twenty-first century has been an unhealthy era for political incumbents. Between November 2000 and November 2016, partisan control of the House of Representatives flipped twice; control of the Senate, four times. That’s the same number of rotations, for each chamber, as in the entire fifty-five-year period from VJ Day to November 2000.
The presidency had a lower turnover rate, but even there, trouble indicators flashed. George W. Bush was reelected in 2004 with 50.7 percent of the popular vote—the lowest percentage of the popular vote in American history for any incumbent president not actually to lose. In 2012, Barack Obama won his second term by a smaller margin of the vote than he won his first, the only such drop-off since the age of Andrew Jackson.
In almost every survey since the Iraq War began to go wrong in 2004, upwards of 60 percent of Americans assessed the country as on the “wrong track.” In the aftermath of the financial crisis of 2008, the wrong-track number spiked past 70 percent. It would return to that disturbing peak at intervals during the slow, weak recovery that followed.17
How removed from interactions with ordinary Americans did political elites have to be to plan the 2016 election as a return engagement between the two most famous political dynasties of late twentieth-century America: Bush versus Clinton? Yet the country’s wealthiest citizens committed hundreds of millions of dollars to secure just that outcome. Could they not foresee trouble? Apparently not.
Rich people faced rising taxes in the Obama years, and understandably they did not like it. They had to deal with a president who seemed unusually unimpressed by their accomplishments, a sore point for a class of people accustomed to accolades and compliments. The venture capitalist Tom Perkins signed a letter to the Wall Street Journal in 2014 calling attention to “the parallels of fascist Nazi Germany to its war on its ‘one percent,’ namely its Jews, to the progressive war on the American one percent, namely the ‘rich.’” Perkins warned of the possibility of a “progressive Kristallnacht.”18 Psychic alarms aside, the Obama years were actually a good time for the American affluent. Over President Obama’s eight years in office, the S&P 500 gained 235 percent, more than 16 percent annually—one of the very best returns in US history.19
Yet through those years, one heard the pounding drumbeat of discontent: the Tea Party, Occupy Wall Street, Black Lives Matter, the Trump campaign. These movements had many points of disagreement with each other, but even more important similarities, including a rising tolerance for violence. It could still shock the nation in 2009 when one man carried a loaded rifle to an Obama political rally in Arizona.20 Dozens of weapons were carried at the Black Lives Matter march in Dallas in 2016 that ended in the killing of five police officers and the wounding of seven more, as well as the injury of two civilians.21 Even more and heavier weaponry would be displayed at the rallies against the removal of Confederate statues in Houston and Charlottesville in 2017.
The affluent and the secure persisted with old ways and old names in the face of the disillusionment and even the radicalization of the poorer two-thirds of American society. They invited a crisis. The only surprise was . . . how surprised they were when the invited crisis arrived.
Donald Trump did not create the vulnerabilities he exploited. They awaited him. The irresponsibility of American elites, the arrogance of party leaders, the insularity of the wealthy: those and more were the resources Trump used on his way to power.
“It’s even worse than it looks,” quipped a 2012 book by Norman Ornstein and Thomas Mann.22 Such pessimism invited the reply, “That’s what you said last time.” Things have looked bad before without the world coming to an end. Why panic now? But it can equally be true that things were bad before, that things have gotten worse since, and that things may get even worse in the future. Like a man falling downstairs, each thump and tumble may be a prelude to the next, with the final crash still waiting for him even farther down.
Since the election of Donald Trump, the hard and painful floor seems to be rising toward us faster and faster and faster.