No, you’re not imagining things.
The United States in in the midst of a constitutional crisis and an effort by the incoming administration to consolidate an authoritarian regime. It’s not what Americans — Republicans, Democrats or independents — voted for, but it’s happening. What people do in the coming weeks and months — both high elected officials and ordinary citizens — is the hinge upon which history will pivot.
I wrote in these pages just over a year ago about the authoritarian threat former President Donald Trump represented: the unrepentant leader of a violent coup attempt who promised to pardon insurrectionists and other criminals en masse; to purge the civil service, FBI, CIA, federal prosecutors’ offices and military; and to round up and imprison his political opponents. Just a few weeks into his presidency, it’s clear Trump wasn’t bluffing. Swing voters may have cast their ballots to lower the price of eggs, but they’re getting the authoritarian agenda Trump and his allies were expressly telling us they would deliver.
Some of the things the new administration is doing are legal, even as they are authoritarian.
The president does, in fact, have the power to pardon the people who beat police officers, vandalized the Capitol and expressed interest in executing Vice President Mike Pence, even if it amounts to the endorsement and encouragement of political violence. One of our Constitution’s shortcomings is that there’s no formal legal barrier to a president ending the independence of the entire federal law enforcement apparatus, even if doing so is obviously antithetical to the maintenance of a free society.
The commander in chief can appoint a man who’d been forced out of the National Guard on account of his far-right Christian nationalist tattoos to be the secretary of defense, so long as enough senators from his party decide that’s who they want overseeing of the world’s most powerful military force. Our chief executive is empowered to single-handedly start trade wars with our neighbors and closest allies, disrupt supply chains, raise consumer prices and destroy how we’re perceived by everyone else on the North American continent.
Other recent actions are not constitutional. If a president wants to abolish the Department of Education and the U.S. Agency for International Development (USAID), or to change the funding priorities of the National Science Foundation or the National Institutes of Health, or the U.S. Department of Transportation, the Constitution is very clear on how one does that: You have to persuade members of Congress to pass the requisite laws and funding bills, because Congress is the branch of government that created these agencies and allocated those funds to begin with. USAID exists because there’s a law that created it and is still in effect. The Department of Transportation is supposed to send the money allocated to towns like Stonington, Maine, so they can pay the local contractors working on their infrastructure right now because Congress approved those funds. The president doesn’t have the power to block those funds or to close federal agencies any more than you, or I, or private citizen Elon Musk does.
When the president breaks laws or violates the Constitution in such a manner, our system provides two remedies. The first is that the U.S. House impeaches him or her and the Senate votes to remove them from office; it’s clear that the Republican majorities in these chambers today will not do this.
The alternative is that the illegal moves are challenged in court and blocked by judges, who order the lawless acts reversed. This is what is happening now, with judges appointed by Ronald Reagan, Bill Clinton, George W. Bush, Barack Obama, Joe Biden and Donald Trump himself ruling against the administration in recent days and weeks.
Which leads us to the biggest question of all, the one every American should be focused on: Will an administration that has so brazenly flouted the law do as the courts order? And what if it doesn’t?
The courts can direct U.S. marshals to arrest people acting in contempt of their rulings, which is what would happen to you, me or any other citizen who did such a thing. But the Marshal Service — and indeed all other federal law enforcement — reports to the president’s attorney general, who might order them not to act. You might say this itself would be illegal, but under the Supreme Court’s controversial 2024 decision in Trump v. United States, a president cannot be held criminally responsible for an “official act,” like telling the marshals what to do. Anyone else executing an unconstitutional order could be held accountable, but a president could simply pardon them.
Let’s hope that doesn’t happen. If it does, we will all be living in an authoritarian regime, where the law becomes whatever The Leader says it is. We’re Americans. That’s not what we’re supposed to be about.
Our opening statement as a people, the Declaration of Independence, sets out our purpose: to build a country where every person’s intrinsic rights to survive, to not be tyrannized, to live the life they chose for themselves, and to take part in determining who represents us and in holding them accountable. As Americans, it’s our job to defend one another’s rights to these things, to uphold and defend this democratic experiment, lest it perish from the Earth.
We all need to do that now, regardless of party, ideology or creed, from our governor, legislators and congressional representatives to each of us going about our day-to-day lives. Defend an institution you care about. Demand the rule of law. Believe in truth. Speak up for the targeted. And never obey in advance. This is not a drill.
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