Chapter 1
Pre-Existing Conditions
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.
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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)
- The hoax was accepted in some form or other by a large majority of Republican voters. Surveys in the final year of the Obama presidency found that only about one-quarter of registered Republicans acknowledged that Barack Obama had been born in the United States. The three-quarters majority expressed either certainty that he had not (about 40 percent) or doubt that he had (about 35 percent). Highly informed Republicans were actually slightly less likely to accept the fact of Barack Obama’s American birth than less-informed Republicans.9
- The hoax not only shaped but outright controlled the political possibilities for Republican officeholders. When confronted on television with video of Iowa Republicans insisting that Barack Obama was hiding something about his origins, then-Speaker John Boehner had this to say to NBC’s David Gregory: “It’s not my job to tell the American people what to think. . . . The state of Hawaii has said that he was born there. That’s good enough for me. The president says he’s a Christian. I accept him at his word.” He then repeated: “The American people have the right to think what they want to think. I can’t—it’s not my job to tell them.”10
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.
- The hoax almost instantly became decisive in the Republican Party’s presidential politics. Donald Trump seized on the Birther hoax in 2011, shouldering aside its early promoters to emerge as the nation’s preeminent denier of Obama’s Americanism. People forget this now, but Republicans instantly rewarded Trump by acclaiming his as their favorite for the presidential nomination of . . . 2012! An April 2011 poll put Trump in first place among Republican presidential possibilities, by an impressive nine points over the runner-up, Mike Huckabee, and eleven points over the ultimate winner, Mitt Romney.12
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.
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Republicans had pledged and pledged again to repeal and replace Obamacare. They fought the 2012 elec...
