Ming-Sung Kuo (University of Warwick – School of Law) has posted Time of Legal Populism and America’s Presidential Constitution (The Cambridge Handbook of Legal Populism, forthcoming) on SSRN. Here is the abstract:
Trump 2.0 not only stands out from its earlier edition but also sets itself apart from other populist takeovers of constitutional government through the ‘salami tactic’ around the globe, with its blitzkrieg-like lawfare on institutions. In its lightning push to dismantle the building-blocks of the modern US administrative state, Trump’s MAGA-style presidency has capitalized on three inbuilt US institutional features of legal populism that enable the weaponization of legal institutions to their detriment. First, the construct of the president as the head of the executive power that is empowered to respond to unexpected crisis from nowhere with agility and force paves the way for dictatorial presidency. Second, the idea of popular sovereignty as the source of legitimacy of the constitutional order—which includes statutes—makes the rule of law susceptible to populist co-optation. Third, the administrative state headed by the president gives rise to an all-powerful presidential administration. Following discussion of the institutional features built into the US constitutional architecture, it is suggested that Trump’s MAGA-style presidency is further symptomatic of a contemporary crisis of representation as seen in the conspiracist double helix of hypocrisy and hyper-transparency. Trump 2.0 reveals the true color of America’s presidential constitution as simulation displaces representation.
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