America’s Enabling Act moment: Congress’ coming denouement and the Reichstag test

Nearly one month into Donald Trump’s second term, the courts, the Congress, and the American people are facing the denouement of our democracy’s power. Each will have to decide to either enforce the Constitution or succumb, as Germany did, to dictatorship. The president has faced several court rulings that question whether his actions and policies are consistent with the Constitution of the United States that he swore to defend and uphold. The question now is, will he be prudent and begin to follow court orders, will Congress act, or must the American people shut the country down?

One court has ruled that he defied the Constitution’s 14^th Amendment that defines citizenship and two other courts – so far – have put on hold his freeze on congressionally-authorized spending, his attempt to usurp the Article 1, power of the purse, rights of Congress. Here we see an ongoing parallel with how Hitler chose to govern, a parallel that must inevitably lead to a denouement in which we will learn whether Trump’s America goes the way of continued democracy or the hellish way of Hitler’s Germany.

Two months after Hitler became Chancellor in 1933, he, like Trump today, disregarded his country’s Constitution. In March of 1933, with the National Socialist Party shy of a majority in the Reichstag, Hitler sought and obtained a two-thirds majority vote in the chamber that passed what we know as the Enabling Act. That act stripped the Reichstag’s members of the authority given to them by the voters. The Enabling Act allowed Hitler to override laws passed by the legislature; it allowed him to make laws himself; it allowed him to ignore the Constitution; it allowed him to ban and jail his political opponents. It made Hitler the dictator of Germany. All of this was done with proper procedure and behind the veil of the seemingly best of intentions. Hitler did not unilaterally declare himself dictator. Rather, he and the Nazi Party said that all they wanted was to restore Germany’s lost stature and its people’s well-being. The National Socialists, put plainly, wanted to make Germany great again.

The Enabling Act was known at the time as “The Act for the Removal of the Distress of the People and the Reich.” The Reich’s distress originated in Germany’s surrender in World War I and the harsh terms of the Treaty of Versailles. The reparation payments imposed by the treaty drove Germany’s economy into hyper-inflation and massive unemployment. The German currency became nearly worthless. Employment, standing at about 20 million in 1929, dropped to 11.5 million by the time the Reichstag voted to endorse the act. These were, of course, the very distress of the people that the legislation was purportedly aimed at alleviating.

Donald Trump has promised to Make America Great Again and to undo the carnage allegedly created by the Biden administration. That, of course, is his right — if the Congress goes along with his wishes. And Trump repeatedly promised on the campaign to cut deeply into what he deems to be wasteful spending, the politicization of justice, and the biases of the civil service. As well, he promised to rid the country of illegal immigrants and to undo birthright citizenship. Much of his economic agenda and his withdrawal of birthright citizenship, however, are not rights that fall under the sphere of the American president. Indeed, when it comes to citizenship rights and spending decisions the Constitution is clear. Like Hitler, Trump seems to be signaling that he is not terribly concerned with obeying the constraints that the Constitution and Congress impose on him. Like Hitler, he seems committed to purging anyone who has opposed him and to making the law himself. Here is where the lessons of the Enabling Act become crucial. 

While Hitler sought legislative authorization for his dictatorial rule, so far Trump has not. Whether he subsequently does or does not, the American people and Congress will face hard, fundamental choices. Donald Trump believes, perhaps rightly, that Congress has authorized enormous amounts of wasteful spending. Those expenditures, he contends, impose an enormous burden on the American people, creating national distress. But, as courts have now held, it is at best questionable whether the president can undo the appropriations passed by Congress, contravening the power given Congress under the Constitution. Hitler followed the German Constitutional procedure to eliminate the authority of the Reichstag. Will Trump attempt to do the same? Will the Congress go along if he does? 

The House and the Senate, both with small Republican majorities, may soon be compelled to face the choice that the Reichstag faced in March 1933. When the courts rule against Donald Trump’s efforts to strip away those sections of the Constitution that he doesn’t like, such as the 14^th Amendment’s language on birthright citizenship, then President Trump will have to make a momentous decision. Does he prefer the rule of law over his own desires, or is he prepared to put his own preferences ahead of a ruling by the Supreme Court against his effort to eliminate birthright citizenship or his effort to grant to himself legislative and appropriations authority as Hitler did through the Enabling Act? 

If he follows the law, as his oath and prudence indicate he must, then democracy survives. If, instead, he ignores the Supreme Court, then it is up to the Republican members of Congress to determine whether they are in their jobs to fulfill their oath of office or they are just there to draw a paycheck while the president usurps their function and, as happened to the Reichstag in 1933, denudes them of any say over how their own constituents are governed. If Trump chooses to ignore the court rulings, then Congress must remove him from office or hide behind the pretense that their actions are merely intended to remove the distress of the people and the regime. The heinous results of the Reichtag’s choice are all too clear. They could have chosen otherwise. Hitler needed the support of the divided Catholic Center Party and bought it with side-deals. Trump is a deal maker and that is certainly politics as usual. But such side-deals stop being normal when they result in the legislative branch agreeing to become decoration, as the Reichstag did. 

Well-entrenched democracies—for example, most recently the Republic of Korea—have withstood pressures to undo democracy. Democracy rewards average people so much better than any other form of government that if Trump is not prudent, he should anticipate being deposed by Congress or by mass protest, perhaps even extending to shutting down the economy. 

Wanting nothing more than to be a winner, we should expect that he will submit to the courts, the Congress, and, if necessary, the people. Then democracy is preserved. If he does not, we should expect that he will lose his office, his power, his dignity, and his legacy. If we come to an American Enabling Act moment, the Republicans in Congress should be expected to put democracy and their oaths to the Constitution ahead of any momentary side-deal that profits them politically while destroying the United States and their own political future in the process.