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President Trump’s current assault on the basic structure of democracy represents a far more serious threat than the occupation of the U.S. Capitol on Jan. 6, 2021.
Four years ago, an angry mob, egged on by an aggrieved president who refused to admit defeat, tried to block the counting of electoral votes. That mob failed because stalwart defenders of the Constitution, led by Vice President Mike Pence, defied Trump and upheld the law.
That was one day, one moment, when the constitutional order was in jeopardy. But when that threat was extinguished and Trump’s defeat was confirmed, the crisis ended.
The present period is very different: Trump is not a defeated candidate but a victorious one, and he’s bent on retribution and revenge. His minions aren’t just breaking into one government building; in effect, they are storming dozens of buildings at once. And they aren’t just waving flags and shouting slogans. They’re firing employees, freezing operations and even shuttering some agencies completely.
The peril that was averted four years ago has now arrived. Every day, the dangers to democracy are deepening. “We are in the midst of a constitutional crisis right now,” Erwin Chemerinsky, the law school dean at the University of California, Berkeley, told The New York Times. “There have been so many unconstitutional and illegal actions in the first 18 days of the Trump presidency. We never have seen anything like this.”
“A number of the new administration’s executive orders and other executive actions are in clear violation of laws enacted by Congress,” added Kate Shaw, a law professor at the University of Pennsylvania. “The administration’s early moves also seem designed to demonstrate maximum contempt for core constitutional values — the separation of powers, the freedom of speech, equal justice under law.”
That separation of powers is at the heart of the American system, but the guardrails that might restrain Trump’s rampage have been severely weakened. His primary point man, Elon Musk, has never been elected or approved by the Senate. Both Trump and Musk own powerful social media platforms that enable them to speak, unfiltered and unhinged, directly to their supporters. And by using executive orders instead of legislation, they have kneecapped the Congress, ostensibly a coequal branch of government.
That leaves the federal courts as the last line of defense, and on one day alone this week, five different judges issued restraining orders against five different administration initiatives. All represent a blatant attempt to evade and even eradicate the normal processes of democratic government.
“It has become ever more apparent that, to our president, the rule of law is but an impediment to his policy goals,” wrote District Judge John C. Coughenour, a Ronald Reagan appointee in Seattle, when he blocked Trump’s effort to end birthright citizenship. “The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain.”
Trump’s palpable contempt for the law could lead to a major confrontation if he decides to defy any of those court orders, which he is fully capable of doing. Throughout his entire career, Trump has denounced judges and prosecutors who try to hold him accountable for his actions, and he’s at it again.
About one negative ruling, he fulminated: “No judge should, frankly, be allowed to make that kind of a decision. It’s a disgrace.” Musk called for the impeachment of a jurist who ruled against the administration, and Vice President JD Vance said, “Judges aren’t allowed to control the executive’s legitimate power.”
But they are allowed to curb executives who misuse that power. That’s the whole point of the constitutional principle that not even a president is above the law. “It is exceptionally myopic, hypocritical and dangerous,” Georgetown University law professor Stephen Vladeck said of the calls by Trump officials to defy court orders. “In our system, the way you object to a legal ruling you find objectionable is to appeal.”
National Review editor Ramesh Ponnuru noted on CNN that Republicans have a “long history” of favoring powerful executives. “What is different now,” he warned, “is the level of aggressiveness from Trump, and the level of recklessness. They are spoiling for this fight. They are pushing the limits, in order to see how far they can go.”
On Jan. 6, Trump challenged those boundaries and was thwarted by his own vice president. Today his power is far greater, and so is the threat he poses. For now, only dedicated federal judges stand in his way.
Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at stevecokie@gmail.com.