Lately though, peering into the Hellmouth of Twitter—or even across the Thanksgiving dinner table—it’s hard to miss the signs that partisan contempt has become more pervasive and toxic. The personal has become the political, and politics has become all too bitterly personal. Even Joe Biden has noticed. “Let this grim era of demonization begin to end here and now,” the president‐elect declaimed in his victory speech last November; it’s time to “see each other, not as adversaries, but as neighbors, [to] stop the shouting and lower the temperature, for without unity there is no peace, only bitterness and fury.”
But the toxic partisanship that plagues us can’t be cured with a change in presidential tone. The modern presidency is a divider, not a uniter. It has become too powerful to be anything else.
THE SPONTANEOUS ORDERING OF HATREDS
We’ve entered “an acute era of polarization,” two Stanford political scientists report in a 2018 study: during the first two decades of this century, “partisans’ mild dislike for their opponents has been transformed into a deeper form of animus.”
Henry Adams called politics “the systematic organization of hatreds.” But what’s been deforming our common life wasn’t the result of anybody’s central plan. We’ve been coming apart by accident more than design. Pursuing our individual preferences— for Republicans, bigger yards and houses, for Democrats, density and walkability— we’ve literally moved away from people who don’t share our politics. In 2004, journalist Bill Bishop dubbed this phenomenon “the Big Sort,” and it has only gotten bigger since then. Most counties on the electoral map are now solidly red or blue, and in 2020, roughly 4 in 10 registered voters backing Donald Trump or Joe Biden told pollsters they had no close friends who support the other candidate. A similar ideological siloing has happened online as partisans personally curate their “Daily Me” of politically congenial news, feeding their conviction that it’s the bastards from the other side who are ruining this country.
“I can’t believe Nixon won; I don’t know anyone who voted for him,” goes the quote attributed to New Yorker film critic Pauline Kael. Apocryphal though it may be, the phrase has become shorthand for the political myopia afflicting people who never meet and therefore can’t understand fellow Americans with different political views. If current trends continue, it won’t be long before we’re all Pauline Kael.
What’s worse, we’ve begun to fear, even hate, those we don’t understand. Sixty to seventy percent of Democrats and Republicans now view their political opponents as “a serious threat to the United States and its people.” Forty‐two percent go so far as to affirm that the other team is “not just worse for politics—they are downright evil.”
Political scientists’ terms of art for this development—“negative partisanship” and “affective polarization”—tend toward the clinical and anodyne. Even “tribalism” fails to capture the fear and loathing our political differences evoke. “Political sectarianism,” a term advanced by a group of scholars last fall in Science, comes closer to the mark. Whereas “tribalism” suggests kinship, they explain, “the foundational metaphor for political sectarianism is religion,” evoking “strong faith in the moral correctness and superiority of one’s sect.” Indeed, throughout 2020, the scent of fire and brimstone hovered over scenes of political unrest, from violence at Black Lives Matter protests to the Capitol riot of January 6.
“There is a religious war going on in this country,” Pat Buchanan proclaimed in a notorious speech at the 1992 Republican National Convention. The pundit class recoiled in horror at the time, but it looks as if Buchanan’s dark prophecy was just slightly ahead of the trend.
OUR POLARIZING PRESIDENCY
Meanwhile, as our politics took on a quasi‐religious fervor, the early decades of the 21st century also saw accelerated concentration of power in the presidency. In the Bush‐Obama years, the “most powerful office in the world” grew more powerful still, with dragnet secret surveillance programs, global drone warfare, and an increasing resort to pen‐and‐phone governance.
That’s a volatile mix, law professors John O. McGinnis and Michael B. Rappaport warn in an important recent article, “Presidential Polarization.” “The deformation of our government structure” toward one‐man rule both intensifies polarization and makes it more dangerous. The original constitutional design required broad consensus for broad policy changes. “Now,” McGinnis and Rappaport write, “the president can adopt such changes unilaterally.”
Rampant delegation of legislative power to the executive means that the most important rules of our social and economic life no longer “emerge from a process encouraging compromise among legislators of different parties and different factions.… Instead, the President’s agency heads make federal law.” Fundamental questions of governance formerly reserved to Congress, the states, or the people are increasingly settled in winner‐take‐all fashion by whichever party manages to seize the White House. When so much hinges on which party controls the presidency, is it any wonder it’s becoming harder to keep the peace among rival sects?
“We’re all in this together” was one of President Barack Obama’s favorite rhetorical tropes; it also aptly describes our current dilemma. When one man has the power to reshape broad swathes of American life and law with the stroke of a pen, we raise the stakes of our political differences and risk fostering the sense that every election is a “Flight 93 election.”
STROKE OF THE PEN, LAW OF THE LAND
That presidential elections have consequences is nothing new, of course. It’s a longstanding feature of American politics that when the out‐party retakes the office, the new president overturns some of his predecessor’s policies with the stroke of a pen. In his first 100 days, for instance, President Bill Clinton reversed two executive orders from the Reagan‐Bush era: one had required foreign aid recipients to certify that they wouldn’t promote abortion as a method of family planning, and another had ordered federal contractors to post notice that no employee is legally required to join a union. Subsequent Republican presidents turned those policies back on— and Democrats, off again—with the requirements winking in and out of existence every time the office changed parties.
Lately, though, the consequences of a presidential party shift have grown far more sweeping. In 2012, not long after disclaiming the power to unilaterally rewrite immigration law—“that’s not how our democracy functions”—President Obama decided that, actually, it is. He issued orders offering lawful status and eligibility for federal benefits to nearly half of the 11 million undocumented immigrants in the country. President Trump moved to unwind those edicts and implement his own, including a travel ban on seven Muslim‐majority nations. With a “Dear Colleague” letter to universities receiving federal grants, the Obama administration issued a very broad definition of sexual harassment and pressured schools to lower due process protections for students accused of it. The Trump administration reversed that policy and raised the burden of proof in campus adjudications.
The “power of the pen” and the party affiliation of the president now govern such questions as these: who gets to come to the United States and who gets to stay, what rules govern free speech and sexual harassment disputes on college campuses nationwide, what apps are permitted on your children’s phones, and which sports can they play at school? They may even determine whether you’re still on the hook for your student loans. One of the key benefits of “energy in the executive,” Alexander Hamilton assured us in the Federalist, was that it would ensure “steady administration of the laws.” Today, the law itself changes radically every time the White House changes hands.
Worse still, legal changes made by presidential decree may be locked in for as long as the president’s party holds the office— even when there’s majority support in Congress to overturn them. That’s thanks in part to a 1983 Supreme Court decision, Immigration and Naturalization Service v. Chadha, holding that attempts to rein in presidential lawmaking must themselves run the gauntlet of the ordinary legislative process, subject to presidential signature or veto. The upshot was to shift the default setting of American government toward presidential unilateralism. The president now enjoys broad power to do as he pleases unless and until Congress can assemble a veto‐proof supermajority to stop him.
Trump’s veto record illustrates the new dispensation. In 8 of the 10 vetoes issued during his single term, he beat back attempts to reverse unilateral actions a congressional majority opposed. Trump even seized new powers and used the veto to keep them, rebuffing resolutions aimed at overturning his border‐wall emergency declaration and, after the targeted killing of Iranian general Qassim Soleimani, another aimed at restraining his ability to wage undeclared war on Iran.
RETURN TO NORMALCY?
There was a moment, late in the 2020 campaign, when President Trump almost seemed to be making the case for his opponent. A vote for Biden, he told the crowd at an October rally, would be a vote for “boredom.” If we get “Sleepy Joe,” “nobody’s going to be interested in politics anymore.” We should be so lucky.
Credit where due, Joe Biden has managed to deliver a Twitter feed more decorous and dull than his predecessor’s. But Donald Trump’s incontinent and erratic personality wasn’t what made the presidency the central fault line of our polarized republic—it was the vast powers the office has accrued.
In the first days of his administration, President Biden unleashed such a flurry of unilateral edicts that even the New York Times editorial board felt compelled to cajole him: “Ease Up on the Executive Actions, Joe.” By the 100‐day mark, Biden had already issued more executive orders than President Obama managed in his entire first year.
One Wednesday this summer, a single edition of the Wall Street Journal featured three stories on Biden edicts with staggering sweep. The TikTok app could remain on American phones for now—with the new president revoking a Trump order aimed at banning the Chinese‐owned program. But the Keystone XL pipeline would die, Biden having rescinded a key permit allowing it to cross the U.S.- Canadian border. A third story outlined the Environment Protection Agency’s plans to ratchet up wetlands protection under the federal Clean Water Act, vastly expanding restrictions on Americans’ use of their own property. By July, Biden had moved on to showerheads, reinstating an Energy Department water‐flow standard lifted by Trump. Henceforth, Americans could lawfully douse their domes only at a rate not to exceed 2.5 gallons per minute. The presidency giveth and the presidency taketh away.
Granted, a family fight over water‐flow standards is unlikely to ruin Christmas, but the president’s unilateral powers extend to many of the issues that divide us most. In a 2019 survey, the Pew Research Center found that on key political questions, the average difference between Red and Blue Americans had more than doubled since 1994. The “partisan gap” now dwarfs past social divides such as the gender gap or the generation gap.
Among the 30 political issues Pew probed, some were more polarizing than others. The more polarizing included environmental regulation, with a 42‐point split between Democratss and Republicans on whether “stricter environmental laws and regulations are worth the cost,” and immigration policy, with a 47‐point gap on whether “the growing number of newcomers strengthens American society.” Even in these areas, legislative compromise—on stringency of regulation, or levels and criteria for immigration— might be possible, if presidential dominance had not made legislative bargaining superfluous. “Our warped structure of government creates a shrill debate where people do not need to listen to or to compromise with their fellow citizens to secure their objectives,” McGinnis and Rappaport observe.
Should transgender athletes be eligible to compete in women’s sports? Per a recent Gallup poll, 62 percent of Americans say no, with a 45‐point split between Republicans and Democrats on the issue. The Biden Justice Department asserts that the majority view is based on “misinformation and fear.” In a recent brief, the department argued that the logic of the Supreme Court’s Bostock decision, barring employment discrimination on the basis of gender identity, extends to educational institutions receiving federal funds. The question will likely be settled via administrative diktat before it’s resolved in the courts. Biden’s first‐day executive order on “Combating Discrimination on the Basis of Gender Identity” set the stage for uniform policies on “access to the restroom, the locker room, [and] school sports” at all levels nationwide.
In the Pew study, racial issues, unsurprisingly, proved among the most polarizing, with Democrats and Republicans 55 points apart on the significance of “white privilege” and whether “racial discrimination is the main reason why many black people can’t get ahead these days.” Here, too, the president will have his say. In April, Biden’s Education Department jumped feet first into the roiling controversy over critical race theory in schools with a proposed rule for federal grants in American history and civics. The proposal endorsed the work of self‐described “antiracist” radical Ibram X. Kendi. It’s not yet clear how Biden’s executive order on “Advancing Racial Equity” will cash out in terms of policy, but its pledge to root out ill‐defined “systemic racism” flirts with Kendi’s totalizing approach.
In all likelihood, the worst is yet to come. It has been clear from the jump that in a bitterly divided country with a 50/50 Senate, President Biden would face enormous pressure from the left to bypass a deadlocked Congress and rule by decree.
That’s just not who he is, Joe Biden has insisted repeatedly. “I am not going to violate the Constitution,” the then‐president‐elect told civil rights leaders in December. “Executive authority that my progressive friends talk about is way beyond the bounds.”
But what’s the Constitution between friends? Not much, judging by the president’s brazenly lawless extension of the nationwide eviction moratorium in August. The ban was issued by the Centers for Disease Control and Prevention in 2020 on the basis of a Trump executive order. As it was set to expire, President Biden told progressives his hands were tied: the moratorium was unlawful, as five federal courts, a majority of Supreme Court justices, and the president’s own legal team had concluded. “Get better lawyers,” House Speaker Nancy Pelosi shot back. And Biden caved, ordering the extension while openly admitting, “The courts made it clear that the existing moratorium was not constitutional; it wouldn’t stand.”
Biden’s progressive friends have an extensive wish list, and they’re sure to keep the pressure on now that they know he can be pushed around. The American Prospect has identified “277 Policies for Which Biden Need Not Ask Permission,” including “break up the big banks,” “give everybody who wants one a bank account,” “make it easier for 800,000 workers to join a union, and much, much more.” Senate Majority Leader Chuck Schumer (D‑NY) has urged Biden to “call a climate emergency”: “he could do many, many things” that wouldn’t have to go through Congress. Sen. Elizabeth Warren (D‑MA) is after him to declare an executive jubilee on student loans, forgiving up to $50,000 per debtor, at a cost of around a trillion dollars. Should Biden decide to embrace his inner autocrat and “go big” with the pen and the phone, one thing is clear: that’s not going to “stop the shouting and lower the temperature.”
WHERE DO WE GO FROM HERE?
Are there any reforms that would cool our feverish politics? America’s “thought leaders” have no shortage of proposals. They include ineffectual but mostly harmless notions like “Weekly Bipartisan Senate Meetings” and coercive nostrums like “Mandatory National Service.”
What’s striking is how many reformist prescriptions involve doubling down on presidential activism. In their 2020 book Presidents, Populism, and the Crisis of Democracy, for example, political scientists William G. Howell and Terry M. Moe call for investing the president with the “agenda‐setting” power to force Congress to vote on his preferred legislation, unamended.
We should be heading in the opposite direction: limiting the damage presidents can do and lowering the stakes of presidential elections. We need to rein in emergency powers, war powers, authorities over trade, and the ability to make law with the stroke of a pen.
But relimiting the presidency isn’t enough. We need fewer one‐size‐fits‐all decisions made by the president and fewer such decisions made by the federal government. The “Big Sort,” by which more Americans have chosen to live near like‐minded neighbors, has helped turn our national politics into a winner‐take‐all death match, but the same conditions ought to enable a reinvigorated federalism. Polling data has long shown Americans trust their state and local governments much more than they trust the feds. Even in the pandemic summer of 2020, 60 percent of respondents professed substantial confidence in their state governments; for local governments, the number was 71 percent. Those numbers argue for devolving more power to states and localities: we’d have less to fight about if the important decisions were made closer to home.
One hopes that Americans will rediscover the “better angels of our nature,” put politics in perspective, and rediscover what unites us. Pending that moral awakening, our more pressing need is for structural reforms that limit the harm we might do to each other amid the fog of partisan war. Chief among those is reining in the powers of the commander‐in‐chief.
