State Building in Crisis Governance: Donald Trump and COVID-19.

Abstract

THE STORY OF AMERICAN STATE BUILDING is one in which crisis, once episodic, has become a routine feature of American politics. At the heart of this development is the modern executive: emergency powers are presidential powers. The principal objective of this article is to highlight institutional developments since the late 1960s that framed the Donald Trump administration's actions during the COVID-19 pandemic and currently roil the American state: the expansion of administrative power in the White House, which is largely unconstrained by the institutional imperatives of the bureaucracy, Congress, or state governments, and the emergence of the modern executive as the repository of party responsibility, with both Democrats and Republicans dependent on presidents for messaging, fundraising, mobilization, and programmatic action. Together, these developments form a dynamic of executive-centered partisanship—a merging of partisanship and executive prerogative characterized by presidential unilateralism, social activism, and polarizing struggles about national identity that divide the nation by race, ethnicity, and religion. Our account of executive-centered partisanship and how it affected the Trump administration's response to COVID-19 sheds new light on contemporary crisis management and the political nature of administrative power. Other presidents would have responded differently, perhaps with greater success in stemming the spread of the virus; other presidents might have attempted to centralize administrative power more aggressively in fighting the pandemic, rather than deflecting responsibility to states and private entities. Nevertheless, Trump's actions were not irresolute. They were defined by a purposeful pursuit of partisan objectives: a denigration of bureaucratic expertise and an attack on the “deep state”; the politicization and racialization of federal administrative procedures to crack down on legal and undocumented immigration; a campaign of “law and order” to quell civil rights demonstrations; and a punitive form of federalism, defined by partisan retaliation against “blue states.” Contrary to dominant analyses that paint an administration in disarray, we argue that the Trump administration responded to the crisis through a tactical redeployment of national administrative power to fulfill partisan goals, within a party system beholden to executive power.11 Nicholas F. Jacobs, Desmond King, and Sidney M. Milkis, “Building a Conservative State: Partisan Polarization and the Redeployment of Administrative Power,” Perspectives on Politics, 17 (June 2019): 453–469. As such, we conclude that given the current political and institutional context, American presidents are less likely to offer unifying leadership during national crises, or to suffer the political consequences for failing to do so. Instead of subjecting his party to the “blue wave” many Democrats hoped for, Trump's polarizing leadership agitated a highly mobilized and fiercely contested election that sharpened, rather than ameliorated, partisan conflict. Republicans did better than pre-election prognostications implied down ballot, where they gained 11 seats in the House and maintained control of most state legislatures. Moreover, Trump's term in office enabled Republicans to solidify a conservative majority in the courts. As a result, his successor, Joe Biden, came into office having to navigate public health and economic crisis with a bare majority in the Senate, statehouses and governors more deeply divided than Congress, and a judiciary in which 28 percent of all sitting judges were appointed by Trump, including three new justices on the U.S. Supreme Court. Most tellingly, despite his personal defeat, Trump reigned over his party and reveled in the adulation of its base supporters. In short, the American state offers modern presidents not only the opportunity to strengthen their commitment to partisan tactics under the cover of national emergencies, but also the power to do so without the traditional constraints of party, Congress, and the states. That this strategy mobilized the Republican base and did not arouse a national repudiation of the president's leadership is evidence of the power bestowed on the modern presidency to advance partisan objectives in a deeply divided nation. The article proceeds as follows: First, we argue that while the government's response to COVID-19 is an exceptional case, scholars often learn much about the operating dynamics of the American state by exploring how crises shape and transform certain governing commitments. Students of American politics have long argued that national crises have been central to major political developments. Therefore, the absence of transformative change in the wake of the COVID-19 crisis—the stubborn persistence of the polarizing struggles over American identity that have intensified since the late 1960s—poses hard challenges to this prevailing perspective. Second, we argue that executive-centered partisanship explains the discrepancy between received wisdom and the contemporary battle for the services of the administrative state. We identify three ways in which the Trump administration's actions revealed and reinforced the dysfunctionalism of executive-centered partisanship during COVID-19: the delegitimization of bureaucratic expertise in partisan politics; the decay of constitutional forms that sustain the division and separation of powers; and the politicization of administrative procedures and policy implementation, now central to the partisan struggle to contend with a diversifying and politically fragmented America. Each of these factors, we argue, is symptomatic of the political pathologies that fester under executive-centered partisanship. We conclude with an analysis of Trump's legacy and its effect on the first few months of Biden's presidency. We do not mean to suggest that Biden's leadership is equivalent to Trump's, or that the Democratic and Republican Parties share equal blame for routinizing presidential partisanship. Not only does the base of the Republican Party not apologize for violent insurrection and embrace conspiratorial tales about election fraud, Republican Party leaders in Congress and the states openly question foundational rules and precedent for short-term advantage. Nevertheless, from the early days of his presidency, Biden has struggled to escape from the cultural and institutional forces embedding executive-centered partisanship in American democracy. Despite claims to the contrary, Biden's early performance in office, especially with respect to the COVID-19 crisis, has reinforced the essential features of presidential partisanship.22 Nicholas F. Jacobs and Sidney M. Milkis, “Get Out of the Way: Joe Biden, the U.S. Congress, and Executive-Centered Partisanship during the President's First Year in Office,” The Forum 19, no. 4 (2021): 709–744. Trump's presidency, therefore, has further fused partisanship and executive administration, fanning, rather than dousing, the flames of social discord, all while testing the “resilience” of American democracy.33 Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Broadway Books, 2019). Emergencies have routinely engaged the potential power of the American state and served as a rallying cry to unify the nation. Yet the public health and economic crises wrought by COVID-19 revealed how the worst emergency since the Great Depression failed to free American politics and government from the conditions that deeply divided the nation. Therefore, there is a need to distinguish COVID-19 from previous crises in American political development, and to reconsider the ways in which earlier emergency responses have affected the development of the American state. To do so, we place the emergence of COVID-19 as a national crisis within a richer historical context, one that accounts for the secular development of a politicized administrative state and the deterioration of partisan organizations. Likewise, although the COVID-19 pandemic has been unique in many ways, it is a telling case for understanding the underlying factors that influence the partisan imperatives to use public crises and the authority they confer for partisan advantage. Indeed, unlike other crises fabricated for partisan objectives—for example, the “war on drugs” that Richard Nixon declared in 1971—COVID-19 posed and proved a dire threat to public health. Paradoxically, the Trump administration sought to exploit the public health emergency, even as it denied its severity. As a result, COVID-19 deepened a political crisis that for decades had politicized the administrative state, subjecting it to a contest between liberals and conservatives for its services. Our analysis takes a broader understanding of the American state. The idea of a “state” cannot be encompassed by Max Weber's definition of “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”44 Max Weber, “Politics as Vocation,” in H. H. Gerth and C. Wright Mills, eds. and trans., From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), 77–128 (originally published 1919). Especially in the United States, with its fragmentation of power, the state should be understood as “negotiated arrangements between the central government and powerful subnational units, patterns of competition and contestation among political parties, and relations among ‘public’ and ‘private’ providers of social welfare.”55 Desmond King and Robert C. Lieberman, “Review: Ironies of State Building: A Comparative Perspective on the American State,” World Politics 61 (July 2009): 547–588, at 549. The American state is not easily characterized as weak or strong—its power derives from a centralizing ambition amid a complex system of institutions that seeks to cultivate or impose a specific type of American community. This American state is a legacy of unintended consequences, historical contingency, and the unique position of the presidency in the constitutional order. In particular, the rise of the modern state, especially in a political culture that presumes to proscribe centralized power, is inextricably connected to American wars and domestic emergencies, which are frequently characterized as the moral equivalent of wars. Unlike some other republican charters, the U.S. Constitution does not have formal provisions that establish prerogative executive power in times of emergency.66 For example, Article 16 of the French Constitution explicitly allows the president to take exceptional measures “where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfillment of its international commitments are under serious and immediate threat” (see https://www.constituteproject.org/constitution/France_2008). This provision was an important template of the Fifth Republic, formed in 1958, which transformed a parliamentary into a presidential system. However, crises have created opportunities for presidents to cut through the normal working arrangements of American politics. The central role of the presidency as a vanguard of institutional change has long been understood by scholars; furthermore, territorial expansion, globalization, and the nationalization of American political culture have encouraged the consolidation of an executive-centered state. The imperative to act—especially when confronted with the existential possibility of the state's destruction—leads to creative extensions of existing administrative power and social policy.77 Suzanne Mettler, Soldiers to Citizen: The G.I. Bill and the Making of the Greatest Generation (New York: Oxford University Press, 2005); William J. Barber, Designs within Disorder: Franklin D. Roosevelt, the Economists, and the Shaping of American Economic Policy, 1933–1945 (New York: Cambridge University Press, 1996); Karen Orren and Stephen Skowronek, “Regimes and Regime Building in American Government: A Review of Literature on the 1940s,” Political Science Quarterly 113 (Winter, 1998): 689–702; and Sheldon D. Pollack, War, Revenue, and State Building; Financing the Development of the American State (Ithaca, NY: Cornell University Press, 2009). Emergencies are not only instrumental in episodic bouts of executive aggrandizement; crises and presidential emergency powers have also entrenched the American state's more permanent features.88 Robert P. Saldin, War, the American State, and Politics since 1898 (New York: Cambridge University Press, 2010). Especially during major episodes of bellicosity, the terms of political conflict are redefined, and wartime presidents are central actors in defining these terms. Indeed, David Mayhew has written that wars “seem to be capable of generating whole new political universes.”99 David R. Mayhew, “Wars and American Politics,” Perspectives on Politics 3 (September 2005): 473–493, at 473. All-consuming emergencies open up space for presidents to act unilaterally, permitting political outcomes in both foreign and domestic policy that are largely inconceivable absent the nationalizing and centralizing tendencies of national crises.1010 William G. Howell, Saul P. Jackman, and Jon C. Rogowski, The Wartime President: Executive Influence and the Nationalizing Politics of Threat (Chicago: University of Chicago Press, 2013). As John Lapinski demonstrates, “crises often delegitimize existing government policies that are directly and, in some cases, indirectly linked to the event.”1111 John S. Lapinski, “Policy Substance and Performance in American Lawmaking, 1877–1994,” American Journal of Political Science 52 (April 2008): 235–251, at 238. Although Congress and the courts do not vanish during protracted states of crisis or war, “modern presidents are undoubtedly the preeminent actors.”1212 Douglas L. Kriner, After the Rubicon: Congress, Presidents, and the Politics of Waging War (Chicago: University of Chicago Press, 2010). “Reconstructive presidents,” Stephen Skowronek argues, can bring about new political orders, but they typically do so only when the prevailing regime is in disarray—after the extant regime's internal weaknesses are exposed, often because it cannot contend with governing exigencies.1313 Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton, revised ed. (Cambridge, MA: Harvard University Press, 1997). Therefore, for liberals and conservatives alike, the grandeur of an energetic executive has been forged during the country's most perilous, unpredictable moments in history. More often than not, war and crisis are understood to be central to the development of foreign policy institutions within the presidency, such as the National Security Council.1414 Bryan Mabee, “Historical Institutionalism and Foreign Policy Analysis: The Origins of the National Security Council Revisited,” Foreign Policy Analysis 7 (January 2011): 27–44. However, the fact that foreign crises are so central to redefining domestic priorities for presidential administrations suggests that emergency powers cut more deeply into the fabric of the modern political system. Presidential state building is nurtured by large-scale, national crises, but the modern executive, dependent on loyal partisans, is not an institution that works on behalf of the “whole people” or rallies the country to tackle national crises through enduring reforms. Even in the work of administering less politically charged programs, such as disaster funding or decisions to close military bases, the modern presidency is electorally motivated and often acts to serve its core constituency.1515 Douglas L. Kriner and Andrew Reeves, The Particularistic President: Executive Branch Politics and Political Inequality (New York: Cambridge University Press, 2015). During emergencies, well-organized and highly motivated factions within a single party can leverage the institution to enact unpopular and divisive schemes.1616 Daniel DiSalvo, Engines of Change: Party Factions in American Politics, 1868–2010 (New York: Oxford University Press, 2012). Moreover, the reliance on unilateral administrative measures to advance party objectives—disingenuously justified in the name of the “national interest”—further enfeebles legislative institutions during moments of crisis.1717 Neomi Rao, “Administrative Collusion: How Delegation Diminishes the Collective Congress,” New York University Law Review 90 (November 2015): 1463–1526. With the country sharply divided by deep cultural rifts, such presidential unilateralism arouses fundamental struggles over inclusion. For a time, the executive-centered administrative state was sustained by a fragile consensus that obscured partisan conflict over national administrative power. The extraordinary crises of the Great Depression and World War II led to institutional changes and policies that subordinated partisanship to administration, consolidating a New Deal state committed to a “coalition” between partisans of executive power and the proponents of expertise, or “neutral competence.”1818 Herbert Kaufman identifies the “quest for neutral competence” and the “quest for executive leadership” as core commitments in the development of the administrative state. See Kaufman, “Emerging Conflicts in the Doctrines of Public Administration,” American Political Science Review 50 (December 1956): 1057–1073. Politics was then a search for pragmatic solutions to the challenging responsibilities that America had to assume, at home and abroad, to secure economic and national security. However, public support for the New Deal state fractured in the wake of the cultural and political upheavals of the 1960s.1919 Hugh Heclo, “Sixties Civics,” in Sidney M. Milkis and Jerome Mileur, eds., The Great Society and the High Tide of Liberalism (Amherst: University of Massachusetts Press, 2005), 53–82. The attempt to realize the Great Society exposed the liberal state's central fault lines (notably racial inequalities), and with violent upheaval in Vietnam and in the nation's urban core, the pragmatic center that buttressed the New Deal disintegrated. Once contested by conservative Democrats and Republicans as a threat to constitutional government, national administrative power gained acceptance on the right as liberalism expanded throughout the 1960s. In the wake of the cultural revolution of that decade, Republicans built a conservative base whose foot soldiers, most notably the Christian Right, rallied around the belief that liberalism had so corrupted the country that the national government had a responsibility to aggressively protect “traditional values” and uphold “law and order.”2020 Nicholas F. Jacobs and Sidney M. Milkis, What Happened to the Vital Center? Presidentialism, Populist Revolt and the Fracturing of America (New York: Oxford University Press, 2020), chaps. 4 and 5. As presidents have assumed the mantle of partisan leadership and as partisans increasingly owe their political fortunes to the president's personal success, it has become more difficult to separate national goals from the president's goals. In fusing the institutional interest of the presidency with the “interest” of the American people, emergencies offer even greater opportunity for presidents to act. Increasingly, they act on behalf of their partisan constituencies. As a consequence, partisanship in the United States is no longer a struggle over the size of the state. It has become an executive-centered struggle for the services of national administrative power. The routinization of executive aggrandizement has been deepened by partisan polarization in which Democrats and Republicans not only disagree on matters of principle and policy but also view their opponents as existential threats to the American way of life.2121 Eli J. Finkel, Christopher A. Bail, Mina Cikara, Peter H. Ditto, Shanto Iyengar, Samara Klar, Lilliana Mason, Mary C. McGrath, Brendan Nyhan, David G. Rand, Linda J. Skitka, Joshua A. Tucker, Jay J. Van Bavel, Cynthia S. Wang, and James N. Druckman, “Political Sectarianism in America,” Science 370, no. 6516 (2020): 533–536. Two ingredients of this party conflict make it particularly dangerous. First, since the 1960s, struggles over race and religion have increasingly animated partisan combat, posing fundamental questions about what it means to be an American. These conflicts have been further aggravated by the expansion of presidential power, thereby joining executive aggrandizement to partisan conflict. As intractable party wars have deadlocked Congress, the legislative caucuses have become more dependent on presidents to cut through the Gordian knot and advance causes through executive action. During the George W. Bush and Barack Obama administrations, both Democrats and Republicans became dependent on presidents to pronounce their party's message, raise funds, mobilize support, and advance partisan causes through unilateral action.2222 Sidney M. Milkis, Jesse H. Rhodes, and Emily J. Charnock, “What Happened to Post-Partisanship: Barack Obama and the New American Party System,” Perspectives on Politics 10 (March 2012): 57–76. Indeed, Republican presidents have pioneered the development of executive-centered partisanship. Responding to the explosion of social unrest in the 1960s, Richard Nixon was the first conservative president to braid the language of national emergency with a partisan vision of American society. With a rallying cry of “Law and Order,” Nixon identified new crises—at home, in the urban core, and abroad, in the jungles of Vietnam—that presupposed an “energetic” presidential administration and a conservative modern executive.2323 Richard P. Nathan, The Administrative Presidency (New York: Wiley, 1983). As Jeffery Hart, editor of the influential National Review, editorialized at the time, conservatives could only undo the work of the New Deal and Great Society “through the action of a powerful president who is willing virtually to go to war within his own executive branch in order to carry out his mandate.”2424 Jeffrey Hart, “The Presidency: Shifting Conservative Perspectives?,” National Review, 22 November 1974, 1351–1355, quoted in part in Jack Goldsmith, “The Accountable Presidency,” The New Republic, 18 February 2010, 35. Like Nixon, Ronald Reagan demonstrated that the politicization of emergency powers did not stop at the water's edge. Whereas the presidency's increasing tilt toward unilateralism in foreign affairs had been a growing concern since the travails of Vietnam, the threat of an “Imperial Presidency” was inured to its partisan dimensions.2525 Andrew Rudalevige, The New Imperial Presidency: Renewing Presidential Power after Watergate (Ann Arbor: University of Michigan Press, 2006). On the one hand, Reagan's foreign exploits, particularly the funding of the Contras in Nicaragua, is an exemplar of Theodore Lowi's prescient observation that “deceit is inherent in the present structure” of the American presidency.2626 Theodore Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca, NY: Cornell University Press, 1985), 175. On the other hand, the Reagan administration's careful and deliberate use of presidential power reflected a deeply held partisan commitment to overcome the Democrats’ “Vietnam Syndrome” and to infuse the Republican Party with a resolute defense of American power overseas. A generation later, George W. Bush conducted the global War on Terror in an ideological environment primed by modern conservatism's embrace of a presidency-centered state. Not only did Bush 43's legal team build a fortress of legal support for the presidency's constitutional independence under the banner of the “unitary executive”—a team led, in part, by Donald Trump's second Supreme Court appointee, Brett Kavanaugh2727 Brett M. Kavanaugh, “Separation of Powers during the Forty-Fourth Presidency and Beyond,” Minnesota Law Review 93 (2009): 1454–1486. —but the White House also took innovative steps to centralize the Republican Party's messaging to transform the 2002 and 2004 elections into referenda on the president's leadership in the War against Terror.2828 Sidney M. Milkis and Jesse H. Rhodes, “George W. Bush, the Republican Party, and the ‘New’ American Party System,” Perspectives on Politics 5 (September 2007): 461–488. Democratic presidents have also leveraged the additional flexibility that crises afford in order to extend their partisan ambitions. These dynamics are not solely dependent on the occupant of the White House; rather, they are endemic to executive-centered partisanship. Barack Obama was elected on the heels of the deepest economic catastrophe that the country had experienced in nearly a century. His presidency, it seemed, would be shaped by the inescapable demands of leading the country out of an economic emergency. Still, despite warnings and outright criticism from fellow partisans, the Obama administration used its sizable partisan victory to pursue health care reform, the most divisive and partisan policy arena, with perhaps the exception of immigration. The consequences are revealing. Democrats in Congress suffered historic losses from an electorate frustrated with the party's namesake legislative achievement: Obamacare. Deprived of his congressional majorities after 2010, the language and ethos of crisis animated the president's governing strategy long after the worst of the Great Recession had passed. As the president boldly proclaimed in the run-up to the 2012 election, “We Can't Wait!”2929 Kenneth Lowande and Sidney Milkis, “‘We Can't Wait’: Barack Obama, Partisan Polarization and the Administrative Presidency,” The Forum 12, no. 1 (2014): 3–27. Obama built upon the centralizing ambitions of his conservative and liberal predecessors to advance through executive action the progressive causes of a potentially powerful but widely scattered “Coalition of the Ascendant”: youth, minorities, the LGBTQ community, and college-educated white professionals, especially women.3030 Ronald Brownstein, “The Clinton Conundrum,” The Atlantic, 17 April 2015, accessed at https://www.theatlantic.com/politics/archive/2015/04/the-clinton-conundrum/431949, 16 March 2022. The Office of Management and Budget—the linchpin of the West Wing's efforts to control the federal bureaucracy, and the creation of Richard Nixon—extended its reach deeper into the administrative agencies, using presidential powers over grantmaking processes, rulemaking, and personnel to link Obama's management strategy directly to his grassroots support.3131 See, for example, Timothy J. Conlan and Paul L. Posner, “Inflection Point? Federalism and the Obama Administration,” Publius: The Journal of Federalism 41 (Summer 2011): 421–446; and R. Shep Melnick, The Transformation of Title IX: Regulating Gender Equality in Education (Washington, DC: Brookings Institution Press, 2018). In sum, political crises often demand unified leadership and we remember the tendency for Americans to “rally around the flag.” But political upheavals also delimit who belongs in the community and who should remain outside. And, in the current structure of American partisanship, presidents are quick to seize power for partisan purposes. Crises are external shocks that presidents systematically exploit. If the past were prologue, Donald Trump's mismanagement of the worst national crisis since the Great Depression should have sentenced him to the fate of “a late regime affiliate”—like Herbert Hoover or Jimmy Carter—and resulted in a severe political reckoning: “the final repudiation of a bankrupt conservative political order and the rise of a new progressive regime.”3232 Richard Kreitner, “What History Tells Us about Trump's Implosion and Biden's Opportunity,” The Nation, 12 October 2020, accessed at https://www.thenation.com/article/politics/interview-stephen-skowronek/, 16 March 2022. The Trump presidency radiated gross incompetence at nearly every stage of the pandemic. At the highest levels, Trump's chief policymakers sent contradictory signals about the spread of the virus. Belying his boast that the president has “total authority” to battle the pandemic, Trump deflected primary responsibility to state and local governments, and, when calls for racial justice and police reform emerged in the midst of widespread lockdowns—a second, interrelated moment of reckoning for the country—he seemed unsympathetic to, and indeed stridently sought to resist, the swells of public discontent and demands for change. Only as the president's public opinion polls cratered amid the twin diseases of the coronavirus and police brutality did he resume his daily press briefings—two months after declaring them a “waste of time.” Largely pro forma, these media rituals only highlighted how the Trump administration repeatedly failed to recognize the threat that COVID-19 posed to public health and the economy.3333 Michael D. Shear, Noah Weiland, Eric Lipton, Maggie Haberman and David E. Sanger, “Inside Trump's Failure: The Rush to Abandon Leadership Role on the Virus,” New York Times, 15 September 2020, accessed at https://www.nytimes.com/2020/07/18/us/politics/trump-coronavirus-response-failure-leadership.html, 16 March 2022; and Michael C. Bender and Rebecca Ballhaus, “How Trump Sowed Covid Supply Chaos,” Wall Street Journal, 31 August 2020. And yet, far from breaking the rules, Trump followed the playbook of partisan administration. Rather than attempt to reprise the modern executive as the steward of the public welfare, as many journalists and public figures had been taught to expect during a national crisis of the highest order, Trump further fused executive prerogative and partisanship. This was not just a matter of Trump's many eccentricities. It was endemic to executive