The Accommodation
Sussing out the tensions in the larger MAGA coalition
A few weeks ago, A.J. Bauer offered a constructive note in the LPE blog. He suggested that those opposed to MAGA should try and expose the weaknesses in the MAGA coalition, turning its different components against one another. As things have developed over the last few weeks, one emerging conflict is becoming more noticeable. The nature of this conflict is puzzling some commentators. Everything becomes clearer if we step back and appreciate the long-run interactions between different institutions.
MAGA, like the traditional conservatism it displaced, is predicated on a tenuous accommodation that goes to the heart of the movement’s constitutional politics. For the last decade, MAGA has been built on a politics that somehow invests governing authority in the President and the federal judiciary. Presidentialism and juristocracy have succeeded in the twenty-first century at Congress’s expense.
To be clear, this episode in the accommodation finds precedent in the last century of our constitutional politics. A helpful guide here is Anthony Michael Kreis’s excellent book from last year, “Rot and Revival.” Kreis is a political scientist who teaches at George State’s law school. The book helpfully connects the idea of political regimes to America’s very powerful judiciary. As he shows, judges will in the long run tend to serve as the watchmen of newly extant political regimes. The Hughes Court could oppose FDR for a while, but they lacked the power to resist Roosevelt’s reconstruction of the American state. This is particularly true as FDR’s appointments remade the composition of the federal judiciary. Over the last century, judges have been the handmaiden’s of presidentialism. SCOTUS appointees will likely have served in the executive branch (not in legislatures), where they will have been surrounded by a presidentialist constitutional politics. Over the last century, the key alliance between American institutions at the federal level has been the tacit accommodation of presidential power within a juristocratic slide that sees judges asserting more power over what were once political questions.
Usually, this is a pretty solid deal for presidents. But Trump is thinking differently. Because his remaking of the state is premised on personal rule by President, he has no tolerance for the normal price for the accommodation. As Kreis notes, judges don’t just accede to a new regime and start enforcing its terms. They have to navigate the enforcement of path dependencies that were worked into the law under older regimes. So even the most pro-president judiciary will operate as a break on experimentation. That’s just the cost of doing business with a mode of governing authority as medieval as courts.
This accommodation is a skeleton key for understanding different areas of the law. A classic puzzle for administrative law junkies is why the Roberts Court has simultaneously bought into the unitary executive while overruling Chevron. The answer is quite obvious once you see it. The Roberts Court’s conservative justices are presidentialists down to their bones. They have bought into the unitary executive theory because it matches their own preference for a model of singular accountability that can only be achieved through presidential control over the administrative state. This Court’s case law makes it the most extreme on presidential power in U.S. history. At the same time, these same justices have nothing but disdain for the “faceless” bureaucrats who man the “deep state.” In their heads, they can increase judicial control over these administrators by overruling Chevron and wielding the major questions doctrine, all without seriously straining presidential control over administrative apparatuses.
You see this playing out across the last decade. This accommodation was the glue that kept MAGA alive in Trump 1.0. Recall that Trump kept conservatives onboard with his candidacy after the Access Hollywood scandal by promising critical judicial appointments. Ideological judicial appointments would power the right’s juristocratic agenda on guns, the First Amendment, and a broader assault on state regulatory power. Once he was elected, it became clear that Trump had no legislative agenda. Trump openly scorns the thicket of legislative politics. What kept conservatives on board—in addition to those sweet, sweet tax cuts—were judicial appointments. And overall those appointments have kept the accommodation alive. Trump judges tend to aggrandize presidential control over the administrative state while playing their part in the steady creep of juristocracy.
Beyond pragmatism, what makes the accommodation tenable in recent times? The important ingredient is a shared contempt for alternative sources of governing authority, especially modes of authority premised on non-partisan expertise. MAGA runs on a contempt for the deep state that is shared in the legal right and the MAGA heartland. Similarly, both conservative jurists and the MAGA faithful have a lack of interest in representative assemblies that verges on contempt. Professor Josh Chafetz of Georgetown Law has shows that this contempt is all over the Roberts Court’s case law: corruption law, new administrative doctrine, and in directly cutting down congressional powers.
In the last few weeks, the accommodation has frayed amidst Trump’s ongoing clashes with judges and lawyers. (See, e.g., FTC Chairman Ferguson’s attempt to curb the American Bar Association.) Trump now desires a remaking of the political system. He is sated off extreme visions of presidential powers, no doubt fed to him by insiders like Russell Vought. In taking on the old regime, Trump is trying to offer a new narrative of national belonging.
The thing to focus on isn’t Trump’s ramblings about unfair judges. That’s a red herring, a repeat of Trump 1.0 kvetching. The thing that’s going to set off a problem in the main institutional alliance of the MAGA Era is Trump’s Executive Order on birthright citizenship. The document purports to be a president-led reworking of the 14th Amendment and a new model of national belonging. This is more of a frontal attack on juristocracy than any president has attempted in almost a century.
The 14th Amendment is supposed to lay out the new terms of national belonging that emerged from the ashes of the Civil War. For legal liberals, it attempts a resanctifying of the national project. This project is an important element of our “creedal constitutionalism.” And it is an important part of judges’ self-conception that they alone are the priests able to maintain the creed’s meaning.
Litigation over this Order will bring the accommodation under new pressure. As we speak, some law professors are attempting an eleventh-hour Hail Mary. They will try to make an off-the-wall argument against birthright citizenship on the wall with claims produced hastily and outside of the normal rigors of the scholarly process. Already, the mainstream of Fourteenth Amendment scholars are brandishing their swords, readying to keep Trump’s Order outside the confines of respectability within legal circles.
That battle between law professors is almost beside the point in the broader struggle. Some justices of the Roberts Court openly detest legal scholars. The legal academy, if taken seriously, would offer an alternative basis of legal authority and so must be marginalized. The battle over the Fourteenth Amendment will just provide alternative permission structures for outcomes that have yet to be reached.
More significant is what the Trumpist attack on birthright citizenship means. By abruptly breaking with the long-established reading of the Fourteenth Amendment, Trump has strained the accommodation. His Order offers a self-contained reading of the Constitution that challenges the juristocrats’ pretenses of control over our constitutional culture. Because of this challenge, Trump has directly threatened the juristocracy.
Why has Trump done this? There’s something to be said for the techno-oligarchs’ new role in the MAGA coalition. The oligarchs, like Musk, seem to hold courts in contempt. The constitutional politics fed to them by the likes of Curtis Yarvin makes very little room for courts as a break on the techno-CEO monarch they envision.
Still more can be said for the weight of Trump’s run-ins with the legal system in between his two terms. The threat of jail time seems to have radicalized Trump, blinding him to the fact that the judiciary is largely stacked in his favor.
Whatever the source of Trump’s move against the juristocracy, the accommodation seems to be breaking down. While Trump will surely sure up his hold on the judiciary with more appointments, the existing judiciary will be very hard to roll. They have not, and will not, take kindly to a president-led rethinking of national belonging.
Ultimately though, Trump’s action has only laid bare the undeniable weaknesses in the juristocracy’s foundations. If the synopsis above holds, we are seeing a move against expertise-based authority and mainstream elites. The winds are moving against the kinds of claims to authority the juristocrats can muster. All that sustains the Supreme Court’s power at this point is the justices’ claim to be the high priests of the sacred text. But aren’t Trump’s first weeks in office proof of a deep sociological change? Having committed himself to obviously unlawful actions, Trump has faced no pushback from Republicans. The GOP is increasingly in the thrall of a straightforward claim to personal rule by president. This suggests a constitutional culture that is weakening to say the least.
Ultimately, an original public meaning debate around the Fourteenth Amendment will only really be accessible to a privileged coterie of scholars. The decisions will be made by an even smaller group of unelected jurists whose claims to authority are brittle in a populist world. The questions raised by the Executive Order go to the heart of national belonging. In the face of a presidentialist takeover of government and a larger break with constitutionalism, how can we expect the juristocrats to settle the issue with any durable solution? An end of the accommodation will remake our constitutional culture, for better or worse.