The naive view of liberal-democratic societies is that we solve this problem by having periodic elections, which allow the population as a whole to evict those at the pinnacle of power from office. And yet, as the example of Russia (and many other countries) shows, democratic elections are not sufficient, as powerful leaders can easily corrupt the democratic process. The most important bulwark is actually the separation of powers. (Indeed, this is a big part of what puts the “liberal” into liberal democracy).
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In practice, the liberal arrangement has the obvious potential to generate problems, because in cases of conflict between the branches there is no clear adjudication procedure. (This is similar to the problem that arose under the old medieval Gelasian arrangement, according to which the emperor and the pope were each accountable only to God, without any procedure for dealing with cases where they disagreed with one another.) Because of this, liberal-democratic societies typically produce, through a quasi-evolutionary process, a set of constitutional conventions to address this impasse problem by granting ultimate decision-making power to one of the three branches.
One of the major differences between Western political systems is that different countries have made different decisions about which branch should be “supreme” over the others, with some choosing the legislature, others the judiciary, and others the executive.
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The U.S., by contrast, has evolved into a system governed by the norm of judicial supremacy, with the Supreme Court acting as the ultimate authority over legislative and executive decisions. It is important to emphasize that this is also a constitutional convention; it is not part of their written constitution. (This is an important point: the fact that a country has a written constitution doesn’t mean that it doesn’t also have an unwritten constitution, or that the former is more important than the latter.)
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The Americans, on the other hand, decided to preserve many of the traditional powers of the king in the office of the President, but to give the office democratic legitimacy by having its occupant be elected. Thus the U.S. constitution essentially froze into place, in the office of the Presidency, many of the powers of an 18th century monarch. For example, the U.S. President’s cabinet functions in much the same way that the British cabinet functioned in the 18th century, when it was basically a group of advisors to the king. In parliamentary systems, it only became conventional for cabinet to consist of elected members of parliament much later on – an evolution that never occurred in the U.S.
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The key thing to recognize is that Trump is challenging a constitutional convention. If successful, his actions may create a permanent realignment of power between the branches of government in the U.S. The fundamental problem, I should note, is that the U.S. has a completely dysfunctional legislature. Since power abhors a vacuum, the rise of judicial power in the 20th century was driven by this legislative weakness. People wanted certain outcomes, and since Congress was unable to deliver, they were happy to have those outcomes imposed by the courts. But judicial supremacy has a number of pathological effects on government, including a near-complete disregard for questions of cost and efficiency. The current play by the Trump administration to expand executive power is a response to both of these issues — the absence of an effective legislature and the accumulated inefficiencies of judicial rule.
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The problem is further exacerbated, at the moment, by the fact that Republicans are acting on so many bad ideas for the reform of the administrative state. This leads Democrats to want to fight back against the changes, using the only remedy currently available to them, which is judicial power. This is why Trump’s actions have generated an average of two law suits per day since he has taken office. Yet by relying on the judiciary to stymie executive “overreach,” Democrats are doubling down on the most dysfunctional aspect of the American system. After all, if there is one thing the U.S. government is good at doing, it’s preventing anyone from changing anything. This “vetocracy” is the most significant barrier to the realization of progressive policy goals. And yet Democrats are now relying on precisely these features of the system to control Trump.
From the essay:
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