Donald Trump’s shock and awe campaign has many targets. These include but are not limited to the country’s democracy, political and social institutions, the social safety net, the economy, the American people’s sense of normalcy and routine and overall physical and emotional health, the Constitution and the rule of law.
Trump and his MAGA movement agents’, allies’ and enforcers’ efforts to undermine if not destroy these targets as part of a revolutionary project to end America’s multiracial pluralistic democracy and to replace it with a form of competitive authoritarianism modeled on Viktor Orbán’s Hungary or Vladimir Putin’s Russia have been remarkably effective. The new America that is in the process of being born will be a 21st-century American apartheid and White Christofascist plutocracy and kleptocracy.
The rule of law and the Constitution have been a particular focus of the Trump administration and its forces shock and awe campaign. To that end, the Department of Justice and the FBI and other law enforcement are being systematically purged so that they can be reshaped in service to Trumpism. The CIA and larger national security apparatus are being gutted and reshaped in the same way. Inspectors generals, career civil servants and other public servants who are tasked with upholding the law and the Constitution are being replaced with Trump loyalists. Other parts of the government and individuals who could potentially hold Donald Trump and his administration accountable to the law and the public interest are also being made to yield to Trump’s autocratic vision and system of personalist rule and corrupt power. Donald Trump’s Cabinet members are defined not by their expertise and competence, but by their loyalty to him above all other concerns or interests.
At the Atlantic, Jonathan Chait explains: “[I]t follows Trump’s understanding of how power works: The people running the system operate it for their own benefit. Smart people figure out how to get in on the corruption and get rich themselves. The people who get left out are suckers.”
Ultimately, a country where the law is defined by the personal imperatives of a given leader, who himself is above and outside of the rule of law, while simultaneously able to wield the law against their “enemies” and in service to his interests (and corrupt power more broadly), is a form of despotism. One of America’s central myths and legitimating narratives as “the greatest country on Earth” and “the world’s leading democracy” was and is that in this country no one is above the law. In a very short amount of time, Trump has exposed that myth for the lie that it is. In a darkly ironic way, Trump has performed a type of public service for those Americans and a culture who were invested in such childish fiction.
In an attempt to make better sense of President Trump and his administration’s use of executive orders and their legality and power, how Trump is challenging (if not outright breaking) basic and long-held foundational understandings and norms about the Constitution, the rule of law and the presidency and what the courts could potentially do to rein in a president or other member of the executive branch who refuses to comply with their orders and legal rulings, I recently spoke with Douglas Keith. He is senior counsel at the Brennan Center’s Judiciary program, which works to promote fair, diverse and impartial courts. Keith is also a founding editor of State Court Report, a Brennan Center publication focused on state courts and state constitutional law.
This is the first of a two-part conversation.
How are you feeling given all the unprecedented things that have happened, and so quickly, with Trump’s return to the presidency? How are you trying to make sense of the tsunami of events?
I am determined to ensure that our democracy survives this moment and that the public is aware of the stakes and when the Trump administration’s actions go far beyond what the law allows or what any administration before them has done.
How are you applying that determination personally and professionally?
One of the most important things we can do is speak up when we see violations of the Constitution or people's rights. There might be a temptation to throw up one's hands and say all is lost or allow the administration to break norms and laws that have not previously been broken before in this country. However, one of the most important steps to preserving the Constitution is to act like we have one. We must speak out when it seems like the Constitution of the United States is being violated. It is a civic obligation and essential for the future of our democracy and country.
In an ideal situation, if American democracy was healthy, what would the courts and other institutions be doing right now?
Our three-branch system of government relies on each branch serving as a check on the other branches' power, ensuring that they don't overstep their authority and boundaries. The people who designed this system of government took for granted that these branches would jealously guard their power and not tolerate the other branches stepping into their lane.
One of the most important things that the courts do is ensure that the executive branch does not take more power than it is allowed under the Constitution. The same is true for Congress. We need to ensure that the courts are willing and able to play that role and that the other branches actually listen to the courts.
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What I am paying close attention to right now is, are both of those things happening. Are the courts stepping in and determining that certain acts by the Trump administration are illegal or unconstitutional when they clearly are, and in turn are the other branches listening to the courts and following those rulings?
One of the key assumptions of the Framers was that the institutions, the different branches of government, would have their own interests and a type of allegiance to themselves. This allegiance would be a counterweight to whatever ideological allegiances or commitments that members of that branch of government might have. In short, the institution and branch of government should matter more than a given elected official’s or other government official’s personal politics.
One of the most problematic things that seems to be happening right now is that members of Congress seem to not be interested in defending the power or interests of Congress as an institution, what should be a co-equal branch of government with the executive branch, so long as their ideological allies are the ones who are taking the power and authority away from Congress. The Framers assumed that the branches of government would fiercely guard their own power, and that just doesn't seem to be happening.
Continuing with our civics lessons — because these concepts and values are foundational for understanding the type of political crisis we are experiencing right now as a country — what is democracy? What is the Constitution and why does it matter?
On a basic level, democracy is a system of government in which the decisions are made with public participation. There are different forms of democracy and nuances to how those systems — which are still considered democracies — are designed and function. Our American system of government is written into the Constitution, and it is the underlying and supreme body of law that is superior to any laws passed by Congress or by executive actions. The Constitution is also much harder to change and therefore less subject to the political whims of one leader or one moment. The process of amending the Constitution requires many more people and much more time than is required to change a law passed by Congress. Ultimately, the Constitution is the body of law that all our officials are ultimately accountable to.
What happens when there is a leader(s) who does not respect those foundational tenets? Who basically rejects the rule of law and the Constitution?
The Constitution and the rule of law matter because without any guardrails our leaders could do whatever they chose to, whether or not the public supported it, or it was legal or legitimate. In a democracy, a system of government that empowers the people, that is not how decisions are supposed to be made.
Donald Trump has issued dozens of executive orders and other edicts. What power and legal authority do executive orders have in the American system of law and democracy?
It depends on the executive order. Some executive orders have real teeth and legal effects. The president is the head of the executive branch. As chief executive, the president has the authority to direct any number of agencies in their work and specifically to tell them how to do their work. There are limits to what executive orders can do. For example, executive orders cannot void acts of Congress. There are executive orders that are little more than glorified press releases. The power of a given executive order ultimately depends on what authority the order claims to rest on, with that authority still very much constrained by the Constitution.
Many court cases have been filed against Trump's executive orders and other edicts. For example, judges have put a pause on his attempts to freeze federal loans, grants, and other funding because it violates Congress' exclusive "power of the purse." A judge has also put a hold on Trump's attempts to overturn the 14th Amendment of the Constitution. Trump and his mouthpieces, including Vice President Vance, are signaling, if not explicitly stating that they will likely refuse to follow the court orders they disagree with. What enforcement powers do judges have if such a nightmare scenario occurs?
First, it should be clear that obeying a court order is not just a norm, it's the law. Since the Civil War, presidents have followed court orders. Presidents of both parties have understood and obeyed the bedrock principle that presidents follow court orders even those they disagree with. Trump followed this precedent as well during his first term. For example, when the courts enjoined the travel ban that he issued back in 2017 President Trump complained on Twitter, but he complied with the order. President George W. Bush asserted broad presidential powers in the war on terror, and the Supreme Court said that detainees in Guantanamo Bay could challenge their confinement, he said that he'd abide by the court's decision, even though he disagreed with it.
Going back further in time, President Truman issued an executive order to seize the country's steel mills in the middle of a war, the Supreme Court said that was unconstitutional, and he backed down. The last time we've really seen any broad refusal by elected officials to follow court orders was after Brown v. Board of Education when Southern governors refused to desegregate schools and President Eisenhower, who didn't love the Brown v. Board of Education decision by the way, nonetheless sent in federal troops to enforce the decision. When Southern governors refused to desegregate schools during Jim Crow that is now widely understood as one of the most shameful periods in our history.
This wide range of examples demonstrates how strong the assumption is that elected officials are supposed to follow court orders, even those they disagree with.
In terms of what happens if a court order is not obeyed, there are a number of tools that judges have access to for enforcement purposes. Judges have contempt power and can issue fines or even arrest individuals who refuse to comply with a court order. Judges do this all the time with people appearing before them. A given judge may be more reluctant to do that when it comes to an executive branch official, but it would not be the first time that a judge held an executive branch official in contempt. These tools have been given to judges in our system of law because there's an understanding that the parties involved are not always going to follow their orders, and judges need tools to enforce their orders.
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