Regime Change in the US?

Many of the assessments of the outcome of the US presidential election predict not only a move towards illiberal and populist policy, but envisage a change of the regime to autocracy. Turkuler Iseksel (Prepare for Regime Change, Not Policy Change, Dissent, November 13, 2016) likens the outcome of the illiberal populist movements in Turkey, Russia, Hungary, Poland with the perspectives of the Trump presidency. Masha Gessen also referring to the Russian and Turkish examples warns that institutions won’t save us from autocracy is the US (Autocracy: Rules for Survival, New York Review of Books Daily, November 10, 2016).

The question is, whether a constitutional system, which has been a liberal democracy at least in the last one and the half century, can really be transformed into an authoritarian regime, like the one in Turkey or Russia, where democracy has never been considered as consolidated. Even with Hungary or Poland the comparison is problematic. Although on an institutional level they have become liberal democracies, on a behavioural level the consolidation of the system has always been very fragile. I consider liberalism as not merely a limit of public power of the majority, but as also a constitutive precondition of democracy (in this respect there is no such a thing as an ‘illiberal democracy’) providing rule of law, checks and balances, and guaranteed fundamental rights. In this respect none of the mentioned countries can be considered liberal democracies. In Russia, not only are the liberal preconditions missing, but even the basic institutional requirements of democracy do not exist. The elections are not fair, their outcome is always certain, be it the election of the president or the legislature. This means that Russia is an authoritarian regime beyond dispute. In Turkey the checks and balances to the presidential power do not work and basic fundamental rights are not guaranteed. Since the 2010 victory of the current governing Fidesz party in Hungary, all the public power is in the hands of the representatives of one party, freedom of the media, religious rights among others are seriously curtailed, and before the 2014 parliamentary elections the electoral system became unfair, securing again the 2/3 majority of Fidesz. While these regimes already have crossed the Rubicon between democracy and autocracy, Poland since the 2015 electoral victory of PiS although, it is clearly approaching this direction by destroying checks and balances and the freedom of the media, but, ultimately, it is still in a transitory situation. Since the governing party does not have the 2/3 majority to change the constitution as it was the case in Hungary, PiS was not able to change the rules of the elections, which means that the relatively strong opposition parties and civil society still have a chance to change the trajectory.

In contrast to all these developments the US is still a fully-fledged liberal democracy. Of course it has some inherited flaws. One of them is the system of the Electoral College, which made Trump – for the fourth time in the history of the US and the second time within the last two decades – the winner of the presidency after losing the popular vote. The very institution of gerrymandering, originating from the US, can also be dangerous in the hands of the majority of the states governed by Republicans. The major concern of liberal democracy for the near future (not necessarily until the next presidential, but certainly until the next mid-term Congress elections) is that two of the traditionally separated branches of government will be in the hands of the GOP. But, as many lawyers argue, the third, the judicial branch can still check both the statutes of the partisan legislature and the executive orders of the President, which might aim at contributing to a regime change. Although the new President, with the approval of the Senate also with a Republican majority, will be able to fill in the current vacancy at the Court immediately after inauguration. However, replacing the late Antonin Scalia, who used to be the most conservative justice on the bench, would not be enough to change the ideological makeup of the Supreme Court that upheld the current liberal President’s biggest achievement, the Obamacare and required states to recognise same-sex marriages. The SCOTUS will contain the same five justices, who recently voted to uphold affirmative action programs and to invalidate restrictions on the abortion right. As Cass Sunstein, Harvard law professor, who also served in the Obama administration argues, due to the respect for precedents, in other words the reluctance to disturb the court’s previous rulings, and ‘judicial minimalism’, meaning the preference for small steps instead of big movements we can expect a surprising amount of continuity in the jurisprudence of the Supreme Court. (Jeffrey Toobin (The Highest Court, The New Yorker, November 21, 2016), and Adam Liptak (What the Trump Presidency Means for the Supreme Court, The New York Times, November 9, 2016 argue similarly.) Of course it is much more uncertain that the center would also hold against the expected populist moves of the executive and the legislator if Trump could also replace at least one of the liberal justices. But even if this will not happen, proponents of liberal democracy should be aware that what is happening in the US right now, is anything but a mere democratic change of the government. Hopefully it will be less than a regime change.