US could be headed for a constitutional crisis, regardless of Election Day outcome
In the modern world, there are basically two ways to run a democracy, and the method pioneered by the United States has a bad track record outside of this country. That record could be made worse as a result of the coming presidential election, no matter who wins.
The political scientist Juan Linz wrote a remarkable paper in 1990 comparing the outcomes of parliamentary and presidential systems, pointing out the ways the latter can (and usually do) fail.
Parliamentary systems, like those in Europe, have a unified legislative and executive branch: A prime minister, chosen from the ranks of the ruling legislative party or coalition, takes on the role of head of government, with all of the powers and responsibilities that entails.
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Meanwhile, in presidential systems, like those of the US and much of Latin America, separate elections decide the fate of those branches of government. On Tuesday, the United States will be choosing a president, but will also, in over four hundred separate house and senate elections, determine the men and women who will approve and send laws to be signed by that new president.
Linz notes that there are two major problems with presidential systems. The first problem emerges when a democratically elected president and a democratically elected legislature hopelessly oppose and despise each other. Neither the president nor the legislature can claim a true popular mandate over the other:
"In a presidential system, the legislators, especially when they represent cohesive, disciplined parties that offer clear ideological and political alternatives, can also claim democratic legitimacy. This claim is thrown into high relief when a majority of the legislature represents a political option opposed to the one the president represents. Under such circumstances, who has the stronger claim to speak on behalf of the people: the president or the legislative majority that opposes his policies? Since both derive their power from the votes of the people in a free competition among well-defined alternatives, a conflict is always possible and at times may erupt dramatically."
The other threat comes from the immense power that comes with the office of President — this person becomes Commander in Chief of the most powerful military in the history of the world while also holding the reins of the wealthiest economy in the history of the world — and the rush to the head that such puissance entails [emphasis ours]:
"Presidentialism is ineluctably problematic because it operates according to the rule of 'winner-take-all' - an arrangement that tends to make democratic politics a zero-sum game, with all the potential for conflict such games portend. Although parliamentary elections can produce an absolute majority for a single party, they more often give representation to a number of parties. Power-sharing and coalition-forming are fairly common, and incumbents are accordingly attentive to the demands and interests of even the smaller parties. These parties in turn retain expectations of sharing in power and, therefore, of having a stake in the system as a whole. By contrast, the conviction that he possesses independent authority and a popular mandate is likely to imbue a president with a sense of power and mission, even if the plurality that elected him is a slender one."
One of Linz' most important observations is that the United States is the only presidential democracy in the two and a half centuries that this system of government has existed to maintain a more or less constant fealty to that system. Every other presidential system has fallen to one or another type of tyranny or collapsed entirely:
"[T]he only presidential democracy with a long history of constitutional continuity is the United States... Aside from the United States, only Chile has managed a century and a half of relatively undisturbed constitutional continuity under presidential government-but Chilean democracy broke down in the 1970s."
Possibly the most frightening part of Linz' assessment of presidential democracy, however, is his argument for why the US alone has managed to stay tyranny-free. After World War II, America enjoyed two political parties that, while disagreeing with each other on the margins of what a free society truly means, shared a basic understanding of the underlying values of such a society. Nations with parties which tended to the far left and far right were more prone to either the constitutional deadlock or rampant demagoguery that tends to plague presidential systems:
"[I]t is worth noting that the uniquely diffuse character of American political parties-which, ironically, exasperates many American political scientists and leads them to call for responsible, ideologically disciplined parties-has something to do with it. Unfortunately, the American case seems to be an exception; the development of modern political parties, particularly in socially and ideologically polarized countries, generally exacerbates, rather than moderates, conflicts between the legislative and the executive...
In countries where the preponderance of voters is centrist, agrees on the exclusion of extremists, and expects both rightist and leftist candidates to differ only within a larger, moderate consensus, the divisiveness latent in presidential competition is not a serious problem... But societies beset by grave social and economic problems, divided about recent authoritarian regimes that once enjoyed significant popular support, and in which well-disciplined extremist parties have considerable electoral appeal, do not fit the model presented by the United States."
When Linz was writing his paper, the moderation of American political parties was already starting to break down, and the ideological polarization of the parties would accelerate just a few years after his paper was published with the "Republican Revolution" of the 1994 midterm election. The sorting of Republicans and Democrats into distinct ideological camps has continued ever since.
Since Linz' writing, Democrats have moved to the left and, to an even greater extent, Republicans have moved to the right. A commonly cited model of political polarization of congresspeople that sorts legislators by how often they vote with ideologically similar representatives called DW-NOMINATE shows the emergence of the kind of disciplined parties Linz warned about:
And that ideological radicalization is why both Hillary Clinton and Donald Trump face a crisis that could shake the core of our democratic republic. Each presidential nominee represents one of the two previously mentioned ways a president could run afoul of a legislature.
Trump has explicitly stated desires to move foreign and domestic policy well beyond the realm of previous presidents and constitutional safeguards. He wants to bring back waterboarding. He suggests that the military kill the families of suspected terrorists. He has indicated a desire for a national adoption of the controversial "stop and frisk" policy that was ruled unconstitutional when used in New York City. One of the central themes of his campaign has been a hard line against undocumented immigrants, at times suggesting a deportation force to remove the 11.5 million or so people who live in this country outside of existing immigration law.
Actually making any of these policies happen would, at the very least, open up strong questions about their legality. A president implementing ideas as constitutionally questionable as Trump's would have no historical precedent in the postwar era and would represent the kind of excess of power that has brought presidential democracies down in other countries.
Meanwhile, a Clinton administration would be functionally at war with a Republican House of Representatives, opening up the other type of crisis Linz describes. Would a President Clinton represent the will of the people, or would a Chairman of the House Committee on Oversight and Reform Jason Chaffetz, who is already seeking further formal investigations of Clinton, be the real avatar of democracy? Other Republican congresspeople have already begun discussing impeaching Clinton, should she win the election.
One can easily imagine a Clinton presidency constantly accused of scandal, legitimate or not, by a hostile ideologically opposed party. And one can easily imagine a Trump presidency constantly pushing the borders of legitimate presidential power. Given the questionable history of presidential systems abroad, it's not hard to become disillusioned with the prospects of that system here.
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