Donald Trump’s playbook is frequently compared to Viktor Orbán’s strategy in Hungary, but there’s another revealing parallel: Latin America’s experience with leaders who steadily expand their power beyond traditional democratic limits. In Latin American constitutional textbooks and law courses, it is usually taught that the region has moved away from the classic American model of presidentialism towards what is called a “hyper-presidential” system that unbalances the American understanding of separation of powers, gives more legislative powers to presidents – including the tools to manage Congress’ agenda and make institutional appointments without the consent of an upper legislative chamber, and has – not always, to be sure – weaker courts and congresses. Popular hyper-presidents in the region often position themselves above the political party system by building an anti-party narrative and fostering a direct, personal connection with voters – consider Chávez’s cult of personality strategy in Venezuela, Bukele’s young and “cool” social media-inspired personal brand in El Salvador, or López Obrador’s daily reality TV-style briefings in Mexico.
One of the consequences of this system was predicted in 1990 by Juan Linz, who observed that presidential regimes could be turned into zero-sum games prone to fostering an unstable democracy through either a “winner-takes-all” situation or an inter-branch and party conflict. Alliances in presidential regimes tend to focus on short-term electoral goals, not genuine power-sharing agreements. Despite numerous nuances and debates around Linz’s seminal piece (to be sure, its main lessons are outdated), many examples have proven his point partly correct in polarized Latin American contexts. If presidents have a strong opposition, they may react in undemocratic ways. In Perú and Ecuador, for example, Alberto Fujimori and Rafael Correa both succeeded in closing Congress while nullifying their opponents. Fujimori did it via a self-coup in 1993, and Correa by weaponizing a constituent assembly in 2008. At worst, presidents can establish a full dictatorship or a dominant party regime, as in Venezuela and El Salvador. At best, moderate presidents can compromise regularly but will remain largely ineffective and unable to build sustainable supporting coalitions. The most common dynamic is gridlock in sensitive areas, inter-branch conflict over regulations, pork-barrel politics, and the unlikely creation of broad and sustainable political coalitions that will go beyond a short electoral cycle. This partly explains the short presidencies in countries like the post-Correa Ecuador (three presidents since 2017) and the post-Fujimori Perú (ten presidents since 2000).
In a hyper-presidential system, presidents who lack a minority in Congress – a common scenario – are pushed to play hardball. Common phenomena include the expansion of emergency powers, ruling by decree to the extent possible (constantly testing the limits of presidential authority), many times with friendly judges that are unlikely to challenge them, diminishing institutions that can check the executive branch, and the judicialization of the legislative-executive branch relationship. Presidents in Latin America may also use a legalistic or rule-of-law narrative to support their authority. They may do this even if that involves an instrumental use of legal institutions or a populist legal theory that can justify their power on direct appeals to the will of the people. There is a common saying in the region, often attributed to Perú’s Oscar Benavides, “for my friends, everything, for my enemies, the law.” But more common than that is the use of legal narratives that seek to incorporate the superiority of the people’s will over institutions and norms. Infamous examples include the constituent assemblies of Chávez (1999), Correa (2008), and Maduro (2017), which were all justified by direct appeals to the people that aimed at diminishing the ability of the opposition to be a real check on the president’s power. Recent but failed examples also include Colombia’s President Petro and Perú’s former president Castillo threatening to convene an assembly to circumvent Congress.
This concentration of hyper-presidential power can lead to what Guillermo O’Donnell, an Argentinian political scientist, has termed “delegative democracy.” O’Donnell developed this idea after observing Latin America’s transition from military rule to civilian government at the end of the twentieth century. As military dictators fell, they were often replaced by non-institutionalized democratic systems that could endure despite their lack of institutionalization. Elected civilian strongmen continued to rule, and many times used the same authoritarian tools as their predecessors. These presidents claimed to have a superior understanding of the people’s interests and showed little patience for institutional checks on their power. O’Donnell claimed that this type of civilian regime required another transition, this time, not from military rule to civilian rule, but from a personalized civilian rule to an institutionalized democratic regime. The problem is that this second transition is never guaranteed; authoritarian rule could be reversed, or the uncertain situation could be perpetuated. Countries like Perú and Ecuador continue to live with that uncertainty.
Is the US transitioning into a delegative democracy, and if so, how can this cycle be broken?
To be sure, the US is not under authoritarian rule, but the Trump presidency is looking more and more like a flawed democracy that will later need a transition to institutionalized rule. This is not an easy cycle to break, as Latin American history shows. To understand why, we need to know how the process of deinstitutionalization in the US is taking root.
Unlike Latin American leaders like Fujimori, Correa, Menem, or Uribe, Trump is unlikely to replace or even amend the U.S. Constitution. However, he is reshaping the American democratic order through other perhaps less obvious means, primarily executive orders, appointments, and an aggressive and polarizing rhetoric. Trump is now fostering his own version of a populist legal theory, which he summarized by borrowing a phrase often attributed to Napoleon: “He who saves his Country does not violate any Law.” Along with this political narrative diminishing the rule of law as a central value in a constitutional democracy, his agenda offers a “counter-constitution.” This transformation of the constitutional order – though, without amendments or replacements – resembles many Latin American experiences, boosted by the intense polarization in the US and the effects of social media.
While it is true that the Constitution still requires Senate approval for key appointments and Trump has not been granted any new formal legislative powers, these institutional checks have become ineffective. He thinks that he does not need Congress to approve legislation to reorganize government agencies – and he has appointed loyalists to key positions in institutions that should maintain independence like the FBI and the Department of Justice. He has also undermined agencies by reducing their size or budget – when he has not removed them altogether – and showing no respect for the legislation organizing those agencies, not to mention his plans regarding DOGE. In truth, he is trying to operate with a king-like authority that is pushing American democracy ever closer to those regimes that are hardly democratic anymore, which naturally has encouraged unprecedented levels of judicialization.
As politicians from all sides begin to fight fire with fire, democratic institutions are at risk of deepening their deterioration.
Trump must be aware that many of his actions are illegal or borderline legal. His point is to test the limits of his authority. Consider his threat to revoke birthright citizenship via executive order – a move legal scholars overwhelmingly viewed as unconstitutional under the 14th Amendment. The actual legality of his threat was beside the point. Rather, it served to show his supporters that he was serious about his agenda – to put America first, in his view – regardless of legal constraints.
Many of Trump’s actions to expand presidential power are being aided by recent shifts in the legal landscape, particularly via the theory of the “unitary executive” – by which he must have control over every administrative agency. The Supreme Court’s removal of the Chevron standard (to name just one case in a larger legal scheme that is now under development), which previously gave deference to administrative agencies in cases of legal ambiguity, has created legal uncertainties. He may have a friendly Supreme Court due to the appointments he made during his first presidential term, but many lower-level judges are challenging some of his policies, and even conservative-appointed judges may be pushed to enforce legal limits. This landscape of uncertainty, combined with Trump’s previous judicial appointments and the existence of new judicial doctrines of hardly predictable application (for example, the return of the Skidmore standard) have created a good opportunity to put pressure on judges and find a legal elite to blame in case things go wrong for him. The stakes of the judicial battles have been raised. It is also an opportunity to see just how far he can go with pushing legal boundaries and expanding his authority.
For leaders of delegative democracies, ruling by decree is not a bug in the system – it’s a feature, sometimes justifiable from the perspective of the populist legal theory that pits the law against the interests of the people. Of course, this approach can be vulnerable in a healthy, competitive democracy. Decrees can be undone as easily as they are made. This is both the advantage and the risk for Trump, who has extensively used his authority to enact executive orders. The advantage for Trump is that his legal team can use the flexibility of the decrees to test new legal theories in courts while putting pressure on judges and making them out to be the aggressors – rather than the victims – of US polarized politics. He can make and remake them to see what type of decree can stick. The risk is that the next administration can easily reverse Trump’s actions. And this is a problem not only for Trump but also for everyone: This raises the stakes of the next election, elevating the costs of Trump’s preferred successor of losing. The scenario promotes the increasingly aggressive use of executive power to manipulate elections. As politicians from all sides begin to fight fire with fire, democratic institutions are at risk of deepening their deterioration. What can be done?
The traditional safeguards of American democracy seem weak in the face of it all. Most Republicans in Congress appear unwilling to challenge Trump. Democrats are apparently waiting until the midterm elections, when they could become a more effective opposition. But much damage can happen between then and now and neither the media nor the courts, even on their best days, seem able to significantly slow the process of backsliding what Trump and his key allies – such as Elon Musk and DOGE at his right elbow – have set into motion.
The cycle cannot be broken just by switching the power from the hands of one leader to the next.
To be sure, judges can, and should, continue to enforce constraints on executive branch aggrandizement. Fourth-branch institutions such as agencies, the media, and electoral institutions are perhaps in a weaker position than courts. We should not place all our hopes in legal institutions. They are helpful, but the primary responsibility relies on the strength of the opposition. Yet, confidence in the opposition – to not only stall but course correct the backsliding of democracy – almost seems futile. The party system in the United States, a key infrastructure of democracy, has broken down in favor of personalized leadership or fragmentation. There is little that the independent media can do in polarized settings, and it is further blunted by social media and fake news narratives. Digital echo chambers and cocoons of information are crippling the information system.
History does offer some hope. Other countries have overcome similar authoritarian challenges, what Tom Ginsburg and Aziz Huq call “near misses” – processes of democratic erosion that have been stopped, such as Bolsonaro’s authoritarianism in Brazil or the PiS in Poland. In cases like those, the opposition parties need to regroup, while legal institutions could buy them some time. Institutions such as electoral commissions, prosecutors, courts, central banks, watchdog agencies, and media regulators can, under certain circumstances, help slow the democratic erosion so that democratic mechanisms remain competitive enough for the opposition to build a plausible political platform and win the next elections. Taking in the Latin American experience, Brazil offers interesting ideas on how the opposition succeeded in regrouping and organizing itself accompanied by strong checking institutions. Though Brazil had robust judges and electoral institutions willing to challenge Bolsonaro—a fact that remains to be seen in the US—and the regrouping of the opponents of Bolsonaro was aided by those institutions—one of which later prevented Bolsonaro from holding public office for eight years—Bolsonarismo is still a problem. Brazilians need to discuss political reforms or the path to an institutionalized democratic regime will remain incomplete.
Building consensual political practices that can strengthen crucial institutions after power is taken back is essential. But the conditions that must exist for those practices to start are not easy to achieve. Democrats need to regroup, take the lead on the protests against the government in ways that look at the median voter, and show that they can present a persuasive majoritarian alternative. And they need to do it fast. But winning power back is just the first stage of a larger process.
If and when Democrats regain power, they will face a crucial choice. The temptation will be to play hardball in the same vein as Trump, to use aggressive tactics in order to restore the broken rule of law. But this would be a hollow salve, offering momentary relief while postponing or even deepening the strain on democracy in the long run. The main lesson of Latin America is that the cycle cannot be broken just by switching the power from the hands of one leader to the next. Sure, a would-be authoritarian can be stopped when elections are competitive and rotation in power exists – but that does not guarantee genuine institutional restoration, and it won’t necessarily stop the polarization cycle. It may even bring new democratic challenges. Think of Perú and its 10 presidents since the year 2000. Instead, Democrats must – when the time comes – push for bipartisan agreements that can secure politically sustainable pieces of legislation that restore the party system, strengthen independent agencies in key areas, reform media regulation (including social media), make for robust and independent watchdog institutions, restore the credibility of the Supreme Court, and succeed in making a more reliable electoral system—perhaps even consider mandatory voting schemes. To be sure, these are no easy agendas to pursue. But this is what the goal should be nonetheless, and the political conditions to achieve them must be created. Perhaps a favorable momentum will exist in the context of a post-Trump Republican party platform attempting to reinvent itself. Democrats will need to show leadership and generosity in that moment.
Of course, the more Democrats restrain themselves as they should from Trumpian lawfare, the more they will be accused of being naïve, soft. It doesn’t matter. The point is that they should make sure to end the polarization cycle that encourages everyone to play hardball. Polarized settings in delegated democratic scenarios set politicians up to fight fire with fire, to seize all opportunities by any means. This means that, for example, if a president abused the pardon power or the authority to enact executive orders, it would be considered foolish if the opposing party did not do the same when they got the chance. This defensive logic is dangerous – not the least because of how tempting it is, and Democrats should not follow it. Instead, they should work to set the country back on course towards an institutionalized and sustainable democratic order. This is what many Latin American presidents and parties have refused to do, but it is precisely what Democrats should aim for. The battle to convince them starts within intellectual and academic circles.
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