Trump’s unchecked power, Supreme Court immunity, and GOP fear risk transforming American democracy into autocracy. Justice system must respond urgently.
During her failed presidential campaign last year, the hapless Vice President Kamala Harris, who unexpectedly found herself the Democratic presidential candidate following President Joe Biden’s bumbling departure, made a number of dire warnings about the threats Donald Trump posed to America’s democracy. Repeatedly, she denounced Trump as a “wannabe dictator obsessed with revenge” seeking unchecked power. “Moderating guardrails”, she warned, “would be removed in a second Trump presidency and he would run riot”. How prescient were these remarks, borne out by recent events.
In many ways, Donald Trump is following the classic playbook for authoritarians. Autocrats hate having people around them who know what they are doing. Incompetent sycophants are just perfect, especially if they’re arrogant, ignorant and extremely loyal, characteristics of the majority of Trump’s current team. The Donald is only willing and prepared to listen to those who continually praise him and tell him exactly how right he is, every time about everything. Cabinet meetings have become worship sessions. Trump has long said that the biggest mistake he made during his first term was hiring what he considered to be the wrong sort of people, in other words experienced advisors who were expert in their field. Now being a Trump loyalist is far more important than being experienced or even intelligent.
Trump’s first 100 days in office have been such a dangerous stress test that many critics are seriously worried about the viability of America’s democracy with Trump governing as a dictator. These are valid concerns. Trump continues to apply a relentless assault on government. He is gutting the federal workforce, overtly handing over power to the world’s richest man, and is even trying to redefine American citizenship altogether. All this in addition to launching a mass deportation campaign. But the most worrying aspect of the 100 days is the growing intensity of Trump’s battle with America’s judiciary, exemplified by the plight of one man, Kilmar Abrego Garcia, a migrant now being held in a notorious El Salvador prison. Despite not having been charged with or convicted of any crime, Garcia was wrongly deported from the US because of an administrative error.
The US Constitution absolutely forbids the punishment by deportation and consequent imprisonment of a person who has never been tried in a court of law. It is at the heart of habeas corpus and would be considered a fundamental breach of human rights in virtually every modern democracy outside of wartime. Donald Trump has expressed his view that all men from El Salvador, or indeed all illegal migrants, were likely to be rapists and murderers – nothing less than guilt by association, a notorious practice favoured by autocratic rulers. He insists that because he was elected to put a stop to illegal migration, anything he does to achieve this must be permissible. In fact he expressed his view clearly during an Oval office press briefing recently when he pointed out that since he “was elected to get rid of criminal migrants” he didn’t know how judges “can take away my right to do that”.
“Judges have every right to do that”, scream supporters of the US Constitution. In fact, this is what they are there to do – to stop the president from acting in any way that is unlawful. Trump appears to know nothing at all about the Constitution and very little about the consequences of ignoring the rule of law. If he had bothered to read it, or listened to qualified advisors (which of course he has sacked), he would know that the Constitution clearly states that the American president is the head of the Executive Branch of the Federal Government, whose power over the country is shared by the Legislative Branch (Congress) and the Judiciary (Supreme Court). Donald Trump appears to think that the president has absolute rule over Congress and the Supreme Court or, in fact, any court. Last week he faced reality.
Following his torrent of executive orders in his first hundred days, Trump last week faced a string of losses on multiple issues in courts around the country. A federal judge in Washington on Thursday blocked enforcement of Trump’s executive order requiring proof of citizenship to vote. On immigration, a judge in California ruled that Trump cannot proceed with his plan to deny federal funding to “sanctuary cities”, those whose municipal laws protect unauthorised immigrants from deportation or prosecution. On deportation, a Maryland district judge ordered Trump to facilitate the return of Kilmar Abrego Garcia and another 20-year-old Venezuelan man. On education, a judge blocked Trump’s plan to cut funding for the so-called K-12 schools, those that cater for children from kindergarten to 12th grade, that have a diversity programme. In Trump’s mind, diversity is a no-no. The judge, however, disagreed, calling Trump’s plan a “violation of teachers’ First Amendment rights.
From this you might think that Donald Trump is getting his comeuppance. But think again. He has a secret weapon – America’s Supreme Court. Last July, as the presidential election was gaining momentum, the Supreme Court shocked the world with its broad “presidential immunity” ruling. Led by Chief Justice John Roberts, who sees himself as a cautious conservative committed to protecting US institutions, the Supreme Court gave almost unlimited immunity to presidents when they take actions that would normally be seen as breaking the law. In a judgement that made the Court appear to be so eager not to hamstring a presidents’ powers, it actually laid out a road map for presidents to do pretty much whatever they want, without having to fear prosecution. To qualify for immunity, no matter how much the action breaks the law, all presidents have to do is consult the attorney general, a presidential appointee, to ensure that the action is official and therefore qualifies for immunity.
Many legal experts viewed the Supreme Court’s ruling as clashing with the intention of the framers of the US Constitution to constrain undue executive power, seeing that it gives presidents a bright green light to flout myriads of laws. They also believe it was perilous to issue such an expansive immunity ruling just months before the authoritarian-minded Donald Trump might win a second term in office as president. In the view of many Americans, however, there’s little doubt that the Supreme Court is increasingly becoming a political organisation, the result of its members being appointed by sitting presidents. Currently the Court is divided sharply along partisan lines with justices appointed by Republican presidents taking increasingly conservative positions and those appointed by Democrats taking moderate liberal positions. The nine Supreme Court justices, appointed for life, base their decisions on their interpretation of both legal doctrine and precedence, and in most cases, interpreting the law is relatively clear-cut and the justices decide unanimously. In more complicated and controversial cases, however, the Court is frequently divided along partisan lines. It just so happens that the majority of cases currently being considered are those involving Donald Trump’s executive orders, so he is likely to receive a favourable result because of the “immunity” decision last year.
It’s therefore somewhat paradoxical that the Supreme Court, which exists to maintain “equal justice under the law” and functions as guardian and interpreter of the Constitution, has paved the way for the US to become an authoritarian state. Donald Trump has been the Court’s principle benefactor, as the immunity ruling has supercharged his ability to act in authoritarian ways unopposed. The Republican Party, which currently controls both houses in Congress, is terrified of opposing Trump as members know that wealthy Republican donors, such as Elon Musk or Miriam Gates, can singlehandedly bankroll a primary challenge against them which would destroy any future prospects. The significance of all this is that the balance of powers has completely broken down in America.
Most commentators viewed Trump 1.0 as a period when the Donald turned America into a plutocracy, a time when the oligarchs and wealthy corporations were the recipients of huge, undue power. The evidence to date in Trump 2.0, is that America is rapidly becoming an autocratic state, with the president and his inner circle of friends steamrolling the constitution and federal law, while Trump himself seeks retribution against perceived enemies and pokes two-fingers at the judiciary.
These are very dangerous times for democracy in America and it is touch and go whether the justice system will come to its senses to save it. For the sake of everyone in the free world, it must.