The Constitutional System and the Normalization of Deviance

On January 28, 1986, the space shuttle Challenger blew up 74 seconds after launch, killing all seven astronauts.  The Rogers Commission, which investigated the tragedy, found that the technical fault was the burn-through of a rubber O-ring separating sections of the right solid rocket booster.  It also discovered that the O-ring problem had been known about for years but that NASA continued to fly, a process Nobel physicist and commission member Richard Feynman likened to playing Russian roulette.  When shuttle after shuttle flew successfully, NASA just accepted a problem it had initially itself named critical to flight safety.  Sociologist Dianne Vaughan labeled this "the normalization of deviance."  In short, behavior that is deviant becomes more acceptable over time.  After a while, people no longer think of it as violating essential norms. Ultimately, disaster strikes.

In the last year, the Trump Administration has conducted a wide range of actions that break Constitutional norms sanctioned by law, history and widely accepted precedents of executive behavior.  Its deviations include, for example:

·       Eliminating federal programs and agencies without approval of Congress or regard to the legislative authorities that created them;

·       Refusing to spend funds appropriated by Congress for specific purposes;

·       Terminating federal civil servants without due process or evidence of poor performance;

·       Using Executive Orders to avoid the legislative process for a wide range of domestic and foreign affairs actions whose legality has since been challenged in the courts;

·       Ignoring or canceling federal regulations without seeking public comment and giving Congress the required authority to approve or disapprove these actions;

·       Ignoring the clear intent and sometimes the explicit language of court opinions and orders and belittling judges and threatening their impeachment;

·       Expelling immigrants without providing the due process rights guaranteed all persons in the United States under the 5th and 14th Amendments;

·       Using the Justice Department to launch investigations and actions against institutions and individuals as political retaliation for legal behavior taken during a previous administration;

·       Using the threat of withholding federal funds or revoking their tax-exempt status for universities to force compliance with Executive Orders;

·       Using the threat of denying access and security clearances to law firms to force them to pledge millions of hours of pro-bono work to defend the administration and/or its priorities; and

·        Suggesting that a president is not bound by the 14th Amendment’s guarantee of birthright citizenship or the 22nd Amendment limiting him/her to two terms.

This behavior may thrill those who approve of a president willing to ignore traditional norms to remake government and re-orient society. Even most Republicans in Congress agree or are silent, willing to put up with what they otherwise might criticize as the price to pay for access to the president, to achieve their own goals or because they fear objecting would “primary” them out of their seats.    

In addition to the weakening of the Constitution, the danger is that such deviance becomes treated as acceptable and normal by the public and future presidents. While his supporters and most Republicans in Congress seem unconcerned now, it’s unlikely they would approve of such behavior by a Democratic president who has a Congressional majority.  

This normalization of deviance weakens the institutions of government and civil society, concentrating the powers of three branches of government into one.  Handicapping Congress and the judiciary in performing their Constitutional roles undermines the legitimacy of those institutions and of the Constitution itself and the rigorous debate and compromise essential to sound policy.  When problems inevitably then occur, the public will become even more critical and distrusting of the federal government.  The attractiveness of a demagogue to “save the country” may, somewhat paradoxically, grow stronger.

Deviant presidential behavior, some will argue, is not without precedent.  John Adams and his Federalist Party hated the press and enacted the Sedition Act in 1798 to jail opponents.  Thomas Jefferson scorned the Federalist judiciary and tried to impeach a Supreme Court justice.  Richard Nixon lied to the American people and candidate Lyndon Johnson promised not to send American boys to die in Vietnam and then did just that in huge numbers after being elected. 

None of this behavior became normalized. The Sedition Act was not reauthorized after it expired in 1800. Jefferson's effort failed, Nixon was forced from office and Johnson abandoned running for a second term.  Yet the fact that history might render a correct verdict is neither guaranteed nor consolation for the dangers we now face.

Past deviance among presidents occurred within a Constitutional system that enjoyed widespread public support.  The deviance of the executive was thus constrained by the strength of that system. What must concern us now is that presidential deviance appears aimed at undermining that system itself.

Presidents take an oath to “preserve, protect, and defend the Constitution.”  Deviant behavior by a president, especially when it aims to appear normal, violates that oath.   To argue otherwise is to ignore the long-term danger to our republican form of government and our liberty. That's not the America our founders envisioned in Philadelphia.      

Photo Credit: J. Amill Santiago -unsplash

(Full quote from Thomas Jefferson: “I have sworn upon the alter of god eternal hostility against almost every from of tyranny over the mind of man” - Letter to Benjamin Rush, September 23, 1800)