How to Dismantle a Democracy in Two Easy Steps
Our founders should not be venerated in the way they typically are, but they did an excellent job in structuring the US government so as to avoid concentrating too much power in the hands of an executive who could turn out to be a despot. After all, we’d just finished fighting against one in King George III.
If you wanted to be a dictator in the US, you’d need to dismantle the checks the other branches have on the executive.
For much of what’s happening right now, the remedy the founders spelled out is clear - impeachment in the House and removal in the Senate. Even before that dire step, Congress has explicitly granted Article I power over the executive branch in areas like spending. It is up to Congress to determine what is spent and where. While Congress can delegate certain oversight to the executive, for most things, it’s not up to the president to determine what is spent and where.
The first seal is broken.
Trump has surrounded himself with radical men like Russell Vought who believe the president can overrule any spending mandated by the laws Congress passes. Many of the founders were gravely concerned about the potential rise of political factions and how they could manipulate the system they’d set up. They weren’t creative enough. They did not foresee a situation where Congress would simply willingly cede their oversight of things like spending to the executive branch. They didn’t foresee a situation where Congress would simply refuse to take any action against an executive of their own party, even actions far less drastic than impeachment.
If you want to be a despot in the United States, after eliminating the checks Congress has, you have to deal with the judicial branch.
Trump’s government has been mostly losing in court so far. Courts have blocked his actions on birthright citizenship, ending federal grants, mass firings of employees, shutting off legally mandated agencies, banning transgender members of the military, deportations, USDS actions, among others.
While most of these blocks are temporary actions, he is likely to ultimately lose on many of them. (There simply is no legal support for their racist interpretation of birthright citizenship)
So if you want to be a despot and the courts keep ruling against you, how do you proceed?
You ignore the courts.
If a president openly decides to ignore court orders, the check against him would be impeachment. If that’s off the table, the check against the president is… Well, legal scholars are currently grappling with that question as the answer may be nothing at all.
Over the weekend, the United States sent planes full of men, mostly Venezuelans, to El Salvador. The government says they’re violent gang members. El Salvador is placing them in a notoriously brutal forced labor prison reserved for terrorists. The United States is paying for this.
Upon landing, the government of El Salvador released a video of the men being abused by their captors. I am linking it here, but I’ll warn it’s quite disturbing.
This isn’t the first time El Salvador has released a propaganda video of prisoners being abused and we’ve seen such videos from various authoritarian governments, but in this case The United States of America paid for this to happen.
The government claims these men are all violent gang members. Several of them, identified by their families only FROM the video, have no criminal records whatsoever. They were picked up on things like tattoo identification, which has a LONG history of abuse in American law enforcement. This group includes a teenager who picked a tattoo of the flash display wall in a tattoo shop because he thought it looked cool and a man who has a tattoo of lyrics from a reggaetón song written by a musician who endorsed Trump.
The US government is using things like run of the mill tattoos as a flimsy basis to grab these men, chain them, then transport them to a country they are NOT from where they will become slave labor.
Enter the courts.
US District Judge James Boasberg on Saturday temporarily blocked these deportations. As part of his order, he told the government to turn any planes in the air around and return them to the United States.
Not only did the government ignore this order, when the authoritarian president of El Salvador mocked the order saying “Oopsie” in response to it with a post about the men already landing in his country. US Secretary of State Marco Rubio reposted his mocking.
The United States government is openly mocking a court order and bragging about ignoring it.
Judge Boaseberg has had numerous hearings since then. The government has argued his order didn’t count because he gave it orally instead of writing it. This is legally nonsense and already an adjudicated matter. They argued the judge has no jurisdiction over anything happening outside US airspace. This is legally nonsense and already an adjudicated matter. (Following this reasoning, the government could not prosecute soldiers who commit war crimes overseas, or even disobey orders.) Boasberg asked them some general questions about the flights, trying to ascertain just in what manner his order was defied. The government argued they didn’t have to answer him. This is legally nonsense and already an adjudicated matter. They argued since this was a national security matter, they couldn’t give any information to the judge. This is legally nonsense and already an adjudicated matter.
With another hearing today, the government has asked for an extension in responding to the judge’s order to answer his questions. Some people were concerned over this delay, but it was the right call. The judge here is being cautious to limit their chances of a successful appeal.
So in theory, the government tomorrow will be explaining why they were allowed to ignore the judge’s order that the planes on the way to San Salvador return to the United States.
It is disturbing enough that we are paying to export slaves to other countries based on nothing other than “has a tattoo” but it’s a far more important issue that the government feels it does not have to follow court orders to stop.
What constitutes a “Constitutional crisis” and “defying the judiciary” is not, in my opinion, a sharp delineation where you can say X is defiance and Y is not. It’s a gradient. Did the government defy the order to turn the planes around? Yes, absolutely. Is that already a crisis? Yes. Is it an open rejection of the entire judicial branch? I do not think we are there yet but we are on the precipice. The ACLU lawyer handling this case said in a hearing we may not be there yet but we’re at least “very close” to a Constitutional crisis.
In an unrelated case, a judge issued a preliminary injunction regarding Musk’s mass firings. The injunction ordered the government not only to reinstate the employees they legally fired, but to ensure the work they were doing continued. The government responded by rehiring them (those they can find, they have an issue in that they aren’t actually tracking who they are firing) but then placing them on administrative leave en masse. The judge demanded an explanation and the government’s response amounts to little more than “we’re working on it.” The order was not to work on it. The order was to reinstate the employees and have them resume their work.
That action may not rise to the level of ignoring the judge’s order, but it’s close. The Trump administration is currently testing the courts to see exactly what level of disobedience they can get away with.
I don’t know what the future holds here. I think people making solid predictions are not doing so based on data. As of right now, the courts have been holding with the government trying to ignore them where they can but not openly revolting against judicial oversight.
If the courts continue to rule against Donald Trump will he comply with them? I don’t know. What I can tell you is that if we reach that point and he can ignore both the Legislative and Judicial branch’s oversight of the executive, the American system of government will no longer exist in any recognizable form.
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