Precedent provides lifeblood for any democratic republic. Practicality dictates that only a limited number of government practices can be required or prohibited expressly by law. Such laws can be viewed as the “hardware” of government practice. But respect for tradition, the “software,” is critical as well. Harm to precedent may prove to be the most damaging legacy of the Trump years.
Trump is not the first president to trample precedent. Until Franklin Roosevelt’s 1940 re-election, no American president ever served more than two terms. When Washington created the precedent by leaving power voluntarily after his second term, he was hailed widely as a hero reminiscent of Roman General Cincinnatus. A Republican slogan from 1940 claimed that “Washington wouldn’t, Grant couldn’t and Roosevelt shouldn’t.” But in the wake of Hoover’s disastrous tenure and with European war threatening, Americans endorsed breaking the informal term limit. In the 1950s, with conservatives again ascendant, tradition-conscious Republicans codified the two-term limit in the 22nd Amendment.
New precedents can also become problematic. The means of managing potential criminality in the White House had never been fully established before Trump’s first term.
We may have benefitted from the absence of formal precedent. Presidents considering illegal action might be restrained by the fear of future prosecution. Indeed, Richard Nixon had been prosecuted for alleged Watergate crimes until pardoned by President Ford.
That pardon, however, was a one-off. A precedent emerged only in the Supreme Court’s 2023 ruling in Trump v. United States. The Court showed great deference for presidential power, shielding any actions potentially related to official presidential duties.
This unfortunate precedent now offers protection for presidents who would violate the law. They need only a fig leaf of legitimacy. Nixon once claimed falsely that, “when the President does it … it is not illegal.” The Supreme Court virtually endorsed that once dubious claim.
Ironically, an administration that undermines American political tradition also styles itself as conservative. Nothing could be less conservative than breaking precedents that protect us all. Conservative Republican office holders who would be expected to defend precedents have stayed on the sidelines. They know that Trump’s power in their party is so undisputed that he can “primary” any of them and end their careers.
In a recent exception, Senator Cruz of Texas protested FCC Chair Brendan Carr’s threat to the Jimmy Kimmel Show’s broadcast rights. Cruz warned correctly that nixing shows expressing liberal views might create a precedent that could threaten conservative shows in a future Democratic administration. Good point. But where are Cruz and others on Trump’s sending unwanted federal troops to American cities and exploiting federal research funds to promote an ideologic agenda at American universities?
Political re-districting poses perhaps the greatest threat to American governmental traditions.
Political re-districting poses perhaps the greatest threat to American governmental traditions. In the past, no matter how foolish the government’s actions seemed, the next election offered voters the unfettered option to “throw the bums out” and change directions.
Until now.
At Trump’s behest, Republicans in Texas have broken the longstanding tradition that re-districting occurs every ten years following the census. That practice made simple sense, as the census can change the number of districts and require new maps. Under Texas’s previous Congressional district map, the 42% of Democrats voting for Harris in the 2024 election controlled only 29% of Texas’s congressional seats. With the new hyper-partisan districting, the 42% are expected to control only 21% of the seats. The Texas scheme takes the hands of the voters off the levers of power. If competitive, hyper-partisan districting becomes the norm, fair and truly representative government my prove difficult to restore.
This November Californians face a difficult choice. They can stand aside and ignore the redistricting in Texas and Missouri. Or they can break our non-partisan re-districting precedent to counterbalance anti-democratic changes elsewhere. Control of the House of Representatives and a potential critical check on Trump’s power are at stake.
Are Democrats just using the crisis as an excuse to rid the state’s delegation of Republicans? No. If they were, they would not have included a provision restoring non-partisan re-districting in 2030. That feature reflects hope for restoration of political fair play in a post-Trump America.
Should Californians sacrifice our non-partisan practices to resist Trump’s assault on our political traditions? Though we might prefer even-handed politics, you cannot bring boxing’s Marquis of Queensbury rules to a knife fight.
Dr. Daniel Stone is Regional Medical Director of Cedars-Sinai Valley Network and a practicing internist and geriatrician with Cedars Sinai Medical Group. The views expressed in this column do not necessarily reflect those of Cedars-Sinai.
