![Trumping Democracy with Samuel Issacharoff [PODCAST]](https://4liberty.eu/phidroav/2025/10/LEP_Samuel-Issacharoff_square-1024x1024.png "Trumping Democracy with Samuel Issacharoff [PODCAST]")
Are we witnessing the weakening of political parties? If that is the case, what are the effects of this phenomenon on democracy? Is there a market for centrist politics? Has the US turned populist? And what is the future for Argentina under President Javier Milei? Leszek Jazdzewski (Fundacja Liberte!) talks with Samuel Issacharoff, the Bonnie and Richard Reiss Professor of Constitutional Law at the NYU School of Law. He is a leading figure in the study of democracy, constitutions, and the courts, and is the author of Fragile Democracies: Contested Power in the Era of Constitutional Courts and, more recently, Democracy Unmoored: Populism and the Corruption of Popular Sovereignty. He also is a leading figure in the field of procedure and complex litigation, and served as the reporter for the American Law Institute’s Principles of Aggregate Litigation. He served as a senior legal advisor to the presidential campaigns of Barack Obama and has long experience as an appellate advocate in American courts. He is a member of the American Academy of Arts and Sciences.
Leszek Jazdzewski (LJ): Let me start with a very straightforward question. Has the U.S. government shutdown impacted you in any way? What is the situation on the ground?
Samuel Issacharoff (SI): In the United States, on a day-to-day basis, it has no impact yet. Most of the essential services of the government keep functioning. Most people take this in stride because we have had terrible both polarization of our politics and the fragmentation of political authority, which means that the parties cannot really get things done.
This is maybe the third shutdown in the last five years, and it goes on for a while. The politicians yell at each other for a while and, generally, it gets resolved. However, the difference this time is that it is uncertain what the Trump administration will do as a result. The wild card for everything in the American politics right now is uncertainty around Trump’s conduct.
LJ: What are the ripple effects of the recent assassination of Charlie Kirk? How has this event affected the issue of freedom of speech? What is the situation right now? Has the discussion moved to new issues? And is it now more difficult to speak openly against President Donald Trump and the right wing?
SI: There is no suppression of speech on a day-to-day basis. It is not as if people are afraid of who they speak to or guarded in the conversations they have. We are not living through Poland before 1989, that is not the scenario.
When the Kirk assassination took place, there was a sense of fear of ‘What if this was our Reichstag fire? What if this was the event that became the pretext for shutting down domestic liberties and for a big mobilization?’ That, however, did not seem to happen.
Noteworthily, it was interesting that it did not happen, because most American presidents (or, I would say, all until this point), when faced with something awful like a public assassination, rise above the moment and try to be the leader of all the people. And the response of this administration was to immediately try to fan the flames, to make it as much a partisan event as possible. This did not seem to take hold. It is not that there has not been efforts, nor that there are not real transgressions on the speech front, but they take more subtle forms.
What I am more concerned about is the indirect attacks on independent media, the administration’s defamation actions, its ability to tie up opponents in legal proceedings, the indictment of former FBI Director James Comey, and the mobilization of the Justice Department to do investigations. I do not think that the main thrust of the clearly repressive tendencies of this administration are old-style 20th century ‘jail everybody’ suppressed speech. It is more the 21st century vision of ‘just wear them down’ through endless legal proceedings against them.
I am very good friends with a leading Polish legal intellectual, Wojciech Sadurski. And during the first PiS government in Poland, he endured, I think, five defamation actions and lawsuits against him, one or two of them criminal. That is the stuff that wears you down. It is not that they are rounding up members of the opposition party and throwing them in jail. Trump says he wants to do that, but there is very little evidence for it so far.
LJ: You once wrote that populism is a democratic governance with weak institutions. It seems that under the previous Trump administration, the US institutions were strong enough to survive. Is it also the same right now? Should we call the United States a populist country, or is it simply a state with a populist president? What has changed during the second Trump presidency?
SI: The second Trump presidency is quite different in many regards. First, the institutions are weaker. The collapse of our Congress has been almost complete and that is the most worrisome. Our political parties are dysfunctional. That is a terrible issue because that is a major constraint on how the political process works. Therefore, the American democracy is much more menaced than it has ever been – certainly in my lifetime, and perhaps ever since the civil war. But it is still up for grabs, we will see.
Certainly, the second Trump administration came in and tried to consolidate a vision of executive power, which is unbelievably robust, unilateral, and extremely menacing in terms of our structures, the way our government works. One of the differences though, is that, peculiarly, the second Trump administration is more legalistic than the first one was.
The first Trump administration came in and said, ‘We want to ban Muslims from entering the United States just because the president does not like them or their threat of terrorism’, or whatever it is. The court struck down time and time again his various initiatives. This time, the Trump administration came in, and they found bizarre pieces of legislation (some of them very, very old) that gave the president ill-defined emergency powers. As such, they have tried to package what they are doing under the guise of this statutory authority. They claim to be acting with the law behind them.
For example, we have a statute on our books from 1798, when we first had what we call the ‘Quasi-War’ with France. It says, basically, the French are grabbing our merchant seamen at sea and forcing them into the French Navy, and so we are authorizing our ships to resist that. That was the Alien Enemies Act, and they were entitled to act. And in 1798, you, obviously, could not have telecommunications between Washington and a ship. Therefore, it was an authorization of the president to just give orders to protect the American merchant fleet. That statute is still on our books and that is what President Trump claims as his authority for the deportations, for the assault on boats, on open water or open international waters. And it is a very hard issue.
We have another statute, from 1977, introduced during the Arab oil embargo, which says that the president can act with emergency powers if there is a crisis in our energy supply. Well, Trump is using that as a pretext for the tariffs that he is imposing unilaterally. No president has ever done this before. But there a is the facade of legality to it, which makes it so much harder to oppose it. The easiest way to respond to that would be for the Congress to say, ‘This is not what we meant in 1798. This is not what we meant in 1977.’ Unfortunately, our Congress is effectively more abundant.
What is remarkable is that President Trump is doing what presidents have been doing for the last four or five presidencies, but at a scale that is unimaginable. It has been very hard for our presidents to govern. The main reason for that is the breakdown of the political parties, which means that the Congress is a hundred people in the Senate and 435 in the House of Representatives that nobody can coordinate. You have to herd them. And it is very hard to do.
You do not control their nomination, nor their funding. You cannot whip their votes, as we say in the United States. And so, it is largely dysfunctional. Therefore, every president has been relying more on what are called ‘executive orders’ than on legislation. This has been a steady pattern, where we see the level of legislation declining, declining, declining over time. And we see the number of executive orders creeping up.
One measure we use is what is done in the first hundred days of a presidency, because that was the big initiative of Franklin Delano Roosevelt in 1932. We have measured all our presidents by the first hundred days. Roosevelt, in the first hundred days, got somewhere on the order of 80 pieces of new legislation passed. That was the New Deal, which was an amazing feat. Nobody had done anything like that. And it went down over time. Basically, for the last four or five presidencies before Trump the second time, you get ten, twelve pieces of new legislation, something like that.
We refer to the initial hundred days as the ‘president’s honeymoon period,’ during which the Congress is willing to give the new president the benefit of the doubt. We can also measure the number of executive orders issued in the first hundred days. Roosevelt issued quite a number, but typically it is four, six, eight, maybe twelve. In the first hundred days of the second Trump administration, he passed five pieces of legislation, only one of which was a real bill. By contrast, he introduced 145 executive orders in the first hundred days. That is more than Biden, Obama, and Bush combined.
From the day Trump entered the office, what we have seen is a slew of executive orders, seemingly grounded in vague pieces of old legislation. This was well-prepared and that is how he is governing. The Congress is not part of his agenda. He just has to go to the Congress for nominations – and he controls the Senate, so no Senator will defy him for fear of being driven out of their seat. President Trump needs them to pass the budget, but other than that, he can govern by executive decree until the courts say otherwise.
LJ: What are some of the deeper reasons for the fact that someone like Donald Trump could take over the Republican Party and become the president? How did this become possible in the U.S. politics?
SI: In some ways, the question is why did it not happen before? Because in political theory, we have always known that the risk in any democracy is that a demagogue will emerge. Thucydides described this during the Peloponnesian wars. Hobbes wrote that in a democracy, the orators will rule, meaning the people who can sway the masses with their oratory. And Donald Trump was a television reality show star and somebody who was a figure in our social tabloids and a sort of a culturally known figure in New York.
So, why did it not happen before? The reason is that, for most of our history, we have had, like all stable democracies, relatively well-functioning political parties that nominated funded candidates, and then demanded of them that they cooperate in the joint endeavor once they are in the legislature.
Let me give you an example by comparison. Let us look at Poland. You have the Civic Coalition, which won the last legislative elections, and they had a promise of a hundred different things that they were going to get done. To this date, they have introduced only five of them as proposed pieces of legislation. How can you do that? How can you not fulfill the promise? And the answer is that as soon as the election was over, the coalition fell apart. And so, you have never had an organic political party.
One of the difficulties in Poland is that Law and Justice (PiS) has managed to maintain itself more as a real political party. Now, it has opposition to the right, but there were no real political parties that could organize your politics. We have the same thing here. You cannot build a coalition. Biden managed to do so, but it took him two years to pass a stimulus bill that the party was unified around the fact that it needed to be done. But then, you had a fight between the right and the left in the Democratic party, and he could not get it done.
Every year, the Republicans have run on wanting to repeal Obamacare. They want to change the healthcare system. It is not clear what they want in its place, but let us assume that that is what they want to do. However, they have never introduced a piece of legislation on that issue, because they do not have a coherent party that can say, ‘Okay, this is our program.’ As a result, instead, they have a party that is a shell. And then, you get a popular charismatic figure who comes in and takes it over.
As I say in my book, the same thing almost happened on the Democratic side in 2016, when you had Bernie Sanders, a socialist senator from Vermont, who is not even a member of the Democratic party, almost win the nomination. In 2016, you almost had Donald Trump (until very recently not a member of the Republican Party) against Bernie Sanders (still not a member of the Democratic Party). This is a political breakdown.
LJ: Does the theory of median voter, or the capturing of the political center, which was always the way to win elections and rule, still apply? Is there still a market for the center’s predictable politics at all?
SI: I do not think so, because if you think in theory, you want to win an election, which means you have to get over 50% of the votes in the constituency. We have single-member districts. Your elections, in Poland, are more complicated by proportional representation, but nonetheless, the basic idea is that you have got to win 50% and a little bit more in order to rule. How do you do that?
Well, everything we know about every country is that the voters are, basically, aligned on what is called a ‘normal curve.’ That is that the extremes are small, and the center is where the bulk of the votes are. Therefore, you want to position yourself where the votes are.
We had a very famous man in the United States, named John Dillinger, whose vocation was to rob banks. When people asked him, why does he rob banks, he said, ‘Well, that is where the money is.’ And so, politicians are like John Dillinger. They should gravitate to where the money is, where the bulk of the votes are. And that is what the median voter theory says, that at the end of the day, as the election approaches, you are going to try to position yourself in that sweet middle, so that you get as many votes as possible. There is a lot of theory behind it as to why.
What tends to happen now is that our parties are very far apart and the selection of the candidates is not done by the party apparatus anymore, but in party caucuses and, increasingly, in the primary process. What you get in the primaries in the United States – and, unfortunately, it is being reproduced inside the party institutions in Europe as well – is that you get domination by the extreme activists. As a result, a Republican primary will have a turnout of maybe 10% of the voters, maybe less, but they will be the hardcore ones.
The same thing happens on the Democratic side, except the hardcore is more to the left. This means that you get candidates who are so far apart that there is no ability to gravitate back to the middle – because if not, they are going to be challenged from inside, from their activist groups. Therefore, both parties are beholden to the most extreme form.
Let us take a look at a place where there is not even a threat of a meaningful second round – like the New York City right now. We have a candidate for mayor who is almost certain to win, who is very far to the left of where the bulk of the New York population is and who has positions which would put him at odds with the entire national political spectrum. What this means is that New York will elect a very left-wing mayor and that will be an organizing tool for the right of the Republican Party to counter around the country.
In this light, the median voter seems like Christmas at your parents’ house. It is a nice memory.
LJ: How should liberals or the mainstream politics respond to populist nationalism? Should there be a confrontation or perhaps an attempt at redefining the current political landscape? Do you see any way out?
SI: I do see ways out, but I do not know what the shape of it will be. Let me answer in two parts. First, I think the best way out would be to have stable political parties. Unfortunately, no democracy has those right now. This means that we are in a period of reorganization.
I grew up in the period of the Cold War and the post-war world order of the late 20th century. When you tell me that you have French elections without Gaullists or socialists, when you tell me that the Labor and Tories combined in Britain are pulling together less than the independent party, this is a world that is inconceivable to me. When you tell me that the AfD is probably the largest vote-getter in the next round of elections, this is the world that is completely alien to me.
We are in a period of realignment and that is clear. Therefore, the institutional form is really up for grabs. In part, we have social media, we have ways of raising money on the Internet that bypass traditional channels. All these things are disruptive.
However, I want to go to the other side of this. Why has populist nationalism become so popular? I think that a significant reason is that the traditional parties failed, because they did not address what voters are concerned about, so that the European parties were afraid to take up the question of immigration, which is the signal issue for the populace in the United States. The Biden administration allowed two million people to come unchecked across the southern border in a very short period of time and responded by trying to give social services and all that, which obviously would have the effect of drawing even more people. Trump ran against that, and he touched a popular chord.
The populists are also agitating over the economic insecurity that befalls many of the working classes of the democratic countries. There has been failure. The social democratic left – or the Democratic Party in the United States – has been too obsessed with cultural issues, with questions that do not seem to get it the way ordinary people live their lives. Meanwhile, the conservative parties, the Christian Democratic parties have become too beholden to large economic actors, the huge companies, the dominant economic players.
As a result, ordinary people in the country feel that nobody listens to them, that they have nowhere to go. They do not want to worry about their language for fear of giving offense and they do not want to go someplace where the only question is, how do we attract more big capital? They want to hear about their own life. Until the centrist parties, whatever these are – the center of politics, or however it reconstitutes itself – address those issues, we are giving the populists the terrain.
LJ: Let us end our conversation with Argentina, where you were born. What is your take on Javier Milei’s presidency and Argentina today in terms of the economy and the political system?
SI: It is unclear. A 100 years ago, Argentina was one of the five wealthiest countries in the world. When you walk around Buenos Aires today, you see what was built a ago. It is century 100 years.
During the World War II, Argentina was neutral and did spectacularly well economically. However, that is also when the Argentine version of the populace, the Peronists, took hold. Their idea was to make everybody as much dependent upon the state as possible and to choke domestic enterprise as much as they could. The result was an improvement in the standard of living of people. There was health care and subsidies provided.
We saw this also in Poland with the PiS government and the premiums that they were able to give, which were very important to securing support, real support in the population. The problem is you have to be able to afford it. And Argentina never could afford it at the level that the Peronists promised. And so, they printed money.
I lived in Argentina. The last time I lived there was in 1984. The inflation was 1200% a year. You lived day to day, watching your money devalue. As a consequence, everybody’s lives were turned into a scheme.
Milei came in and his opposition was the finance minister of the last Peronist government, who had managed to drive inflation up to 150% a year. You cannot vote for that. That is the death of a country. It saps the moral soul of a population to be fixated on economic security every day, to the level of ‘What do I do with the few pesos I have in my pocket? I have to spend them as fast as possible, because tomorrow they will be worthless.’ It’s a horrible condition. And so, Milei broke the back of the inflation.
Unfortunately, Milei has not a single democratic impulse in him. He has the temperament of an autocrat, somewhat moderated by the fact that he is an intellectual and an economist – somebody who thinks in broader terms. He is not like Donald Trump in that regard. As such, I do not know what is going to happen there.
Milei has never built a political party. He has no support in the Congress, but he had the advantage that the Congress fractured, because the political parties in Argentina are in an even worse shape than they are in the United States (or in Poland). Therefore, it is up for grabs right now. But if he can stabilize the economy, people will give him the benefit of the doubt, because – and it seems ludicrous to even have to say it – when people’s day-to-day economic security is up for grabs, and they have a sense that nothing is working in this country, they reach for demagogues.
This is what we are seeing around the world with the populists rising. And because we still have the memory of Europe in the 20th century, the fear is that the populists will be the pathway to much worse forms of oppressive regimes.
This podcast is produced by the European Liberal Forum in collaboration with Movimento Liberal Social and Fundacja Liberté!, with the financial support of the European Parliament. Neither the European Parliament nor the European Liberal Forum are responsible for the content or for any use that be made of.