Comparative Law in the Age of Trump (I-CONnect Column)

—Aslı Bâli, UCLA School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

2016 was marked by a series of high-profile examples of democratic reversals or backsliding, from the Philippines to Poland, from Turkey to Thailand. There is now talk of an “authoritarian wave” where until recently analysts spoke in terms of waves of democracy. Even more surprising, or disorienting, has been the genuine concern expressed about possible threats to democracy in the United States. Understanding the mechanisms by which democracy gives way to illiberal governance and electoral authoritarianism is perhaps the most pressing question that scholars of comparative law and comparative politics must address.

The thinning of the line between democratic and authoritarian practices—particularly as authoritarian tendencies arise under democratic auspices—has been analyzed in scholarship focused largely on non-Western cases. As a scholar working on Turkey, I viewed the election campaign in the United States during the summer and fall of 2016 with concern. In discussing developments in the campaign with colleagues, however, I struggled to persuade them that there was much to learn about American politics from the study of Turkey. After the election and especially since the Trump administration has taken office, I feel less like a Cassandra.

The shift towards authoritarian governance in Turkey over the last six years has illustrated in acute form many of the characteristics of democratic reversal worldwide. These include “the personalization of executive power, the weakening of democratic checks and balances, less free and fair electoral competition, the imposition of stricter constraints on freedom of expression and civil liberties and the growing use of the state’s coercive capacity to suppress various forms of non-violent, as well as violent, dissent.”[1] One might offer (as many scholars have[2]) a further catalog including: attacks on judicial independence and independence of the media; an insecure executive dependent on advisers selected for personal loyalty (including trusted family members); public-private partnerships that facilitate rampant corruption; targeting minorities as internal enemies; and distrust in the state apparatus resulting in purges, ideological nepotism in appointments, and the partisan transformation of the civil service. The constitutional referendum currently being debated in Turkey would further concentrate power in the executive, attenuate institutional checks, and extend the time horizon for Recep Tayyip Erdoğan’s presidency. But in truth the real purpose of the referendum is to render de jure the de facto transformation of the Turkish constitutional order into an illiberal executive presidency.

The speed and intensity of Turkey’s authoritarian turn has been disorienting even for critics of the ruling party who long warned of its illiberalism. What can be learned from that example in light of the electoral outcome in the U.S.? In the space of less than a month, many of the basic political norms that defined what were heretofore taken to be firm constraints on the American executive branch have been shaken. The norms that require presidents to make their tax returns public or avoid the appearance of nepotism have been set aside. The president declined to divest himself of his sprawling business empire in assuming office, breaking with decades of precedent. Moreover, the president and his advisers have shown little interest in avoiding the likely conflicts of interest created by his business interests and those of his family. The president has lashed out at a federal judge, questioning his legitimacy after he temporarily blocked enforcement of an executive order. He then targeted the judiciary more broadly, suggesting the “court system” should be blamed for any future terrorist attack. The president has shown contempt for journalists, singling out the media as the “enemy of the American people.” He has also shown little confidence in the civil service of the federal government. Similarly, the president distrusts the country’s intelligence agencies. When it was revealed that his national security adviser had misled the FBI and White House officials, the president viewed the intelligence agencies’ role in revealing the information as the more significant betrayal. The president has also signaled an intent to alter electoral rules in ways that may depress voter turnout among constituencies that support his opponents. The president’s closest advisers are individuals selected for their loyalty and ideological bent rather than competence or government experience. These include a former right-wing media executive and the president’s son-in-law. Few institutional checks have so far succeeded in slowing or reversing the pace at which the president sheds long-standing norms of governance. Even constitutional constraints, like the Emoluments Clause, have proven difficult to define or enforce.

There is a remarkable concentration of power in the presidency under the American constitution. Indeed, the Turkish president has cited the American model as evidence that the presidentialism he hopes to put in place in Turkey has a democratic pedigree. The fact that the chief executive’s power derives directly from the people makes these powers even more considerable (as Erdoğan knows well, having presided over a 2007 constitutional referendum that, for the first time, created a directly elected presidency in Turkey). Each of the actions by the Trump administration enumerated above echo elements of Erdoğan’s strategy of governing, right down to the reliance on executive orders and the advisory role played by both men’s sons-in-law. The failed coup attempt in Turkey last July created a window of opportunity for Erdoğan to accelerate the transformation he had already set in motion. Some in the U.S. currently worry about how a Trump administration might make use of a crisis.

Such concerns are a reminder that the distance between liberal democracy and authoritarianism may be easily traversed. Turkey was never a liberal democracy but it had a sufficiently robust democratic order that its rapid descent towards authoritarianism has been surprising. Comparing the Turkish and American cases can yield interesting insights, despite many important differences. One reminder occasioned by the comparison is that a winner-takes-all political system enables a president elected with a plurality (or razor thin majority) of the vote to nevertheless invoke a popular “mandate” to govern with policies that exacerbate the cleavages revealed in the election. This is, of course, a classic problem in presidential systems. In addition, the modern political party system may enable further concentration of power when electoral outcomes place both the legislative and executive branches in the hands of one party, as Stephen Gardbaum has shown.  Exploring how institutional features of constitutional orders may lend themselves to an authoritarian turn has long been a concern of scholars studying democratizing transitions. These concerns should now be central to the research agendas of those studying mature democracies as well.

Suggested citation: Aslı Bâli, Comparative Law in the Age of Trump, Int’l J. Const. L. Blog, Feb. 22, 2017, at: http://www.iconnectblog.com/2017/02/comparative-law-in-the-age-of-trump-i-connect-column/

[1] Karabekir Akkoyunlu and Kerem Öktem, “Existential insecurity and the making of a weak authoritarian regime in Turkey,” Southeast European and Black Sea Studies 16(4) (2016): 505-527, at 506.

[2] See, e.g., Ergun Özbudun, “Turkey’s Judiciary and the Drift Toward Competitive Authoritarianism,” The International Spectator 50(2) (2015): 42-55; Murat Somer, “Understanding Turkey’s democratic breakdown: old vs. new and indigenous vs. global authoritarianism,” Southeast European and Black Sea Studies 16(4) (2016): 481-503; and Berk Esen & Şebnem Gümüşçü, “Rising competitive authoritarianism in Turkey,” Third World Quarterly 37(9) (2016): 1581-1606.