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Donald Trump is teaching us about the limitations of America’s constitutional system. We may have believed that the Constitution’s separation of powers, checks and balances, and guarantees of rights would protect us from a president with authoritarian and corrupt ambitions. But the framework we have counted on is failing.
Trump’s abuses of his office have met no effective opposition from the other branches of government. As he has overreached his executive powers, Congress has done nothing to deter him, and the Supreme Court has done more to embolden than to contain him. In his first term, the “adults” Trump appointed to top positions had some cautionary influence on him, but he has now thrown off restraints and surrounded himself with sycophants, enablers, and ideologues. Only half a year into a second term, he is acting, in the words of the conservative former federal judge J. Michael Luttig, with “utter contempt for the Constitution and laws of the United States.”
Trump governs like a monarch, issuing proclamations—143 executive orders in his first hundred days—that assume he has unilateral power to abolish federal agencies, nullify or suspend laws, impound congressionally authorized spending, and defy the Constitution. He has attacked universities and law firms, denying them due process and demanding concessions to which the government has no right; sent noncitizens to foreign gulags, also without due process; deployed the military in an American city based on the false claim that protests were out of control; and launched a trade war against practically the entire world, partner and rival countries alike, based on a fictitious economic emergency. The world, even his own party, hangs on his whims, unsure what he will do next.
These usurpations have enabled Trump to turn the White House and his private clubs into an itinerant royal court, where people come to beg for favors and he basks in their subservience and exploits the presidency for profit. Most dangerously, he has appointed partisans to top positions in the Justice Department and FBI and singled out enemies for them to investigate and prosecute, while he pardons supporters for their crimes. His use of the presidency for personal ends is undisguised; the corruption is open and at an unprecedented scale.
The theory of American government, in Madison’s phrase, is that ambition will counter ambition, but that theory isn’t working. Presidents once had to respect the institutional prerogatives of Congress, jealously guarded by members of their own party as much as by the opposition. Now, Trump and his MAGA movement have cowed Republican legislators. As Sen. Lisa Murkowski (R-AK) has said, “We are all afraid … retaliation is real.”
In addition to protests in the streets and in the states, the efforts to stop Trump’s abuses have turned to the federal judiciary, “the last obstacle to a president with designs on tyrannical rule,” as Judge Luttig puts it. But although the lower courts have often ruled against Trump, the final disposition of the most important of those cases rests with a Supreme Court that is only a frail basis of hope for thwarting his ambitions. The Court has given Trump’s challengers a few victories, but with a 6-3 conservative supermajority since 2020, the Court’s right wing has been more of an aid to Trump than a thorn in his side, much less an effective check on his transgressions.
The Court has emboldened Trump through its ruling on presidential immunity a year ago, and through a series of decisions striking down limits on presidential powers. In the case concerning Trump’s efforts to overturn the 2020 election, the Court declared that presidents have “absolute” or at least “presumptive” immunity from the criminal law for all “official acts,” which it defined so broadly that “unofficial” conduct was reduced “almost to a nullity,” as Justice Sonia Sotomayor put it in her dissent. The Court thereby virtually eliminated whatever deterrent power the criminal law may have had on presidential malfeasance. It identified the government’s prosecutorial powers as an area of absolute immunity (making it seemingly impossible to charge a president with obstruction of justice) and declared that courts cannot consider the president’s motive for any official act (making it impossible to charge bribery). The justices finally gave some confirmation to Richard Nixon’s famous line: “When the president does it, that means that it is not illegal.” |
