Is Trump losing power or legitimacy?

(Originally published on The Pile On back on April 19, 2020. I am moving some of my writing to this page. Things have changed quite a bit since April in ways that make this framework more important. I have edited it for clarity.)

Donald J. Trump is the world-famous, billionaire president of the United States. He is the head of the Republican Party which controls the executive, legislative and judicial branches of the US government. His signature controls the release of billions and billions of dollars. He can call in to the most watched news programs whenever he wants. He also directly communicates with millions of followers by tweet to control messaging, show support for others or announce policy. He appears at daily news conferences where he releases information about what will and will not be allowed in the coming weeks and months. And yet he is now being referred to as an authoritarian “weakman” for his limited actions and refusal to take responsibility for national problems.

How can such a powerful person — financially, politically, charismatically — be so “weak”? The standard commentary is that Trump is avoiding blame rather than asserting action. Sure, it argues, Trump has the authoritarian instinct and the drive, but he only wants to play president — he craves the attention and adoration, but not any of the risk or responsibility. This explanation creates a troubling paradox that is, essentially nonsense: we have to believe that someone who craves and seeks power would simply abdicate power when the potential to take it is greatest. This view fails to explain why his actions to centralize power during the pandemic have been checked by others. The most striking example was when members of his own party rejected his decision to allow judges to detain people without trial. I don’t think the president is rejecting authority — he is after all giving clear orders about who to blame and about which actions not to to take — I think he is being ignored and cut out of executive actions. I do not think that he is choosing to be weak. I think he is losing legitimacy.

One of the most frustratingly nebulous terms in political science is legitimacy. As a term of the art it is usually defined as the quality of having the right to rule. That is, there is a recognized authority and it is correct to obey that authority. This can be of critical importance during political crises or dramatic changes such as succession of power or when different political agents claim to be the correct and appropriate power. Revolutionary change often hinges on claims of legitimacy. The Declaration of Independence made claims to the legitimacy of a republican form of government and an explicit rejection of monarchy in Colonial America. The declaration make no impact on the de facto power of King George III, but rather it attacked his legitimacy. Ultimately, we in the US now see monarchy as wrong not because it doesn’t exist, but because it is not an appropriate form of government.

Conceptually, legitimacy can clarify as much as it can confuse. On the one hand, it conveys something very descriptive and legalistic like when we think about legitimacy as fulfilling the needed requirements for the office or position. In the United States there is a legal process by which an individual becomes a Supreme Court Justice. If the process is followed, the process confers legitimacy on the individual and they are understood not only to have the position, but to have the power to vote on rulings and write opinions that have legal power and authority. We can’t quantify this or see this exactly, but we can feel how legitimacy works in the confirmation process of Justice Kavanaugh. During the confirmation, supporters argued Judge Kavanaugh was worthy of a place on the bench; detractors argued he was not. The process resulted in him being confirmed by a partisan vote in the senate. While many may still argue that he was not the best choice, has personal or moral failings, or even that he ought not be a Supreme Court Justice, no one argues that he isn’t one, or that his rulings should be disregarded. Former opponents accept that he is a legitimate justice.

On the other hand, however, legitimacy can just become tautological and meaningless. This is a problem that typically comes from an uncritical view of authority that bases the right to rule on the possession of power, when the existence of the position justifies the position. The idea that you need to do something illegal at work because the boss said so, or that the police need to be obeyed because they are the police. Legitimacy doesn’t work this way because it is a normative position about what is moral, correct or right. There exist a certain set of conditions that give the boss the right to order you to wash his car much like a certain set of conditions separate the appointment of Justice Kavanaugh from President Obama’s appointment of Merrick Garland. The danger is that we misinterpret acceptance of the position as automatically having the right to rule. Just because a king exists, or hasn’t been overthrown, doesn’t mean they have any legitimacy. Or to examine it from a slightly different perspective, legitimacy explains why you would follow the orders given by a doctor or a mechanic. You would likely obey a doctor in matters of health but not regarding your car because the doctor is a legitimate authority in the field of medicine and it is right to obey their instructions. Doctors, however, have no legitimacy over car repair conferred from medical degrees or licensing boards.

Throughout the coronavirus pandemic I have been watching the president and wondered if it is his legitimacy that is eroding. This is not to question if he is the president — that is a fact — but if he ought to be disregarded and his orders ignored. This matters for a reason that is critical to the function of the US as a federalist institution. As president, Trump has given orders that directly contradicted state governors. In cases where power overlaps or is unclear popular notions of legitimacy can confer the right to rule on one authority and not the other. If we can’t obey both, who will people choose to obey? Who ought we listen to?

Because it is a normative distinction and not a physical property, legitimacy needs to be considered and discussed. There are lots of ways we can grant legitimacy, and some matter more than others. (Who would you rather take medical advice from, a doctor who lost his license or a mechanic who had been a medic in the army? In which situation would it change? These calculations are about the legitimacy of power over your person.) Below I have outlined a couple ways to consider the legitimacy of the president and given a quick explanation and assessment. It is not exhaustive and may be mutually constructive in that they may matter more in combination than alone. This is a starting point and the order below is random.

1. Legitimacy through process, selection. This is the idea that the way a leader is decided gives them the right to rule. If the leader fulfills the process everyone has to accept what they do. For Trump, this would be winning the electoral college. He did that. This is a pretty strong argument for Trump’s continued legitimacy.
2. Legitimacy through process, removal. There is of course a legal process for removing the president. Impeachment is a political process in which the US Congress decides if the president is still worthy of ruling. Did Trump commit an impeachable crime? Absolutely. Was he removed? No. Does this confer the right to rule? Yes.
3. Legitimacy from consent of the governed. This is where it gets tricky in the American system. Although the legal procedure to become president is the electoral college, the underlying philosophical ideal is consent. In democratic republics the benchmark for this is usually understood as getting a majority of the votes or, failing that, at least a plurality. Trump failed on both of these. During the presidency of George W. Bush the “Not My President” bumper sticker conveyed a bit of sour grapes at the outcome but also an explicit utterance of this sense of illegitimacy.
4. Legitimacy through embodied norms. There have been endless think pieces about Trump looking “presidential.” Does that matter? In fact, it may. That he doesn’t act like a president may create a popular notion that is not to be taken seriously as one. This comes into focus watching daily press briefings from mayors, governors and the president. Who is clearest, strongest, most direct? Who acts decisively? Who acts like a leader? This is a very charismatic or performative form, but it seems to be trending against Trump, especially with those writers who see him rejecting responsibility.
5. Legitimacy through popularity. A sensible extension from consent. Although Trump has never been popular, he has also never been very unpopular either and enjoys high approval from his base. Many presidents suffer from low ratings at some point in their term and it hasn’t delegitimized them. (For Nixon, it seems to have gone the other way — as his authority was questioned and misdeeds exposed his rating followed a downward trajectory.) Considering that South Korean President Park Geun-Hye reached a 4% approval rating before being formally removed from power he is probably safe.
6. Legitimacy through quality of work. This is an area where we must be cautious. First, legitimacy is not whether or not people like what the authority does — it is if they have the right to do it. Second, this is not about whether or not leaders make the right decision. However, if Trump sufficiently damages state capacity or global standing this may be a measure held against him. Excessive deficits, weakened government departments or the failure to provide goods and services may lead to him losing legitimacy, but this would be extreme even in a time of extremes.
7. Legitimacy from protection of life. I draw this from Hobbes who cast legitimacy on an absolute authoritarian leader who deserved total obedience as long as the leader provided security. Currently, I think this is where Trump is most at risk and is what think pieces are touching on but not expressing. It is perfectly clear that the Trump administration bungled the Covid response very badly not through inaction but by ordering inaction. Eventually state and city leaders ignored or sidestepped Tump’s edicts as crisis developed. Trump has not and the thousands and thousands of Covid deaths will be his legacy. Ought we follow someone who fails to protect us?

If you get that notion of “it doesn’t matter what he says” when the highlights of the last press conference are played, it is his legitimacy that you are mentally calculating. We already see governors making regional pacts designed to be “Trump-proof”. When Trump made the claim that “when somebody is the president of the United States, the authority is total,” it was almost totally disregarded. His federal plan to dictate the reopening of the country to the states turns out to be voluntary. Even when he speaks out directly to the people with calls to “liberate” states, few people obey. This is not Trump turning away from responsibility, but rather responsible people turning away from Trump.