Happy Birthday, America: 249 Years Was a Pretty Darned Good Run
Say anything to take power. Do everything to hold power. That is effectively the mantra of a rising dictator. And in the United States today, on the eve of the annual Independence Day celebrations, the verb tense has now changed from "rising" to "risen." In a conversation earlier today, a friend said, "People talk about whether there's a constitutional crisis. That's no longer the question, because ...." and I finished the sentence, "we're already in post-constitutional mode."
Given my decade-long series of analyses concluding that the US would soon no longer be a constitutional republic governed by laws and not men and with institutions guaranteeing ordered liberty, this is hardly surprising. My friend and I both agreed, however, that this happened much, much more quickly than we expected -- and we honestly thought that we had long been on the outer boundaries of pessimism. Oh well.
How do we know that that fundamental change has happened? Where is any opposition to the Trump regime going to come from? As Professor Dorf pointed out in a Verdict column yesterday, we now know that we can no longer count on the courts. He effectively criticized the logic of the John Roberts-as-John Marshall theory, by which one would read this Supreme Court's capitulations to Trump as a cagey way for the Court to prevent itself from being exposed for its fundamental powerlessness.
I would add that, even if that theory were still as plausible as it was even a few weeks ago, it is an odd strategy indeed to say something like this: "We're afraid that if we try to exercise the judicial power that it will turn out that we judges have no power, so we're simply not going to try to use the power that we have every reason to doubt even exists." Professor Dorf generously allows that "perhaps the Roberts Court is acquiescing in Trump policies in the hope that the courts can survive to fight another day," but he adds that in fact the future fights will be even more difficult for the courts to win simply because early concessions create momentum that can become all but irreversible.
Again, however, even if that were not true, the "keeping one's powder dry" logic always relies on the idea that, no matter the current crisis, there is an even bigger crisis for which one must be prepared. I mocked that idea in a column two years ago:
In Rob Reiner's 1985 romantic college road comedy "The Sure Thing" -- which does not hold up well to current sensibilities, to say the least -- the two will-they-won't-they protagonists are stuck in the middle of nowhere, with no money and in a driving rainstorm. Suddenly, one character remembers: "I have a credit card!" She immediately looks forlorn, however, and says, "Oh, my dad told me specifically I can only use it in case of an emergency." The other character stops trying to break the lock to a shed that they are trying to enter to get out of the storm and says: "Well, maybe one will come up."
Seriously, what would count as a future emergency for which this Court should hold onto its ammunition rather than using it today? All nine justices wrote the Insurrection Clause out of the Constitution. Also last year, the Republican super-majority gave Trump all but absolute immunity. This year, the Court has allowed the Administration to deport people without due process while, most importantly, neutralizing the judiciary's role in stopping a rogue President from doing his worst. Again, what is the "real" emergency about which everyone must be so worried that a Court would passively allow all of this to happen?
As Professor Dorf's piece yesterday notes, the Court is treating a completely abnormal presidency as if it were normal. I thus agree with his analysis pointing toward the other, more obvious explanation for the prostration of the Roberts majority: These six justices are (beyond some very minor jots and tittles) happy to let Trump move the country into its post-constitutional era. Professor Dorf concludes with this: "[P]erhaps as a matter of substance, we are witnessing something much more alarming than a Supreme Court walking on eggshells to avoid the president’s rage. Perhaps we are witnessing the emergence of the MAGA Court." Indeed.
Republicans in Congress, meanwhile, are predictably falling into line on the hugely regressive bill with the embarrassingly stupid name (which the parliamentarian has ruled is not a valid name for the bill, not that the media bothered to notice). For all of the contrived drama about whether a few Republican holdouts would stick to their supposed principles of one sort or another, the end was never in doubt. And the result is not only horrible in the way that regressive legislation is always horrible -- taking from the middle class and poor to give to the rich, so much so that tens of millions of non-rich people will die too soon and entirely unnecessarily -- but it is even worse here because it provides funding to turn ICE into a national police force. Internment camps are being built. Trump muses about deporting Democrats and even Elon Musk for displeasing him. That is far beyond being a Reverse Robin Hood.
Speaking of the media, I received an email request yesterday from a reporter for a national news magazine who wanted me to answer some questions about the changes to the State and Local Tax Deduction (SALT) that are part of the bill that Trump will soon sign. I only saw that email after the reporter's deadline, but I would have refused to reply in any event. It is not that I have no opinion or expertise to bring to bear on that discussion. Far from it. The problem is that the reporter's questions were so naive and shallow as to guarantee that any resulting article would simply normalize all of this as standard policy analysis, which is what I saw in a Forbes article (written by a different reporter) that the reporter forwarded to me for reference.
So everyone is chasing their tails, deliberately following the Roberts Court's lead and acting as if everything is normal. What about the Democrats? They are out of power, so the point here is not a matter of bashing the minority party's leadership but instead asking what Democrats could do to regain power. Elections? Paul Krugman is one of the few people I have seen who is finally making the important point that a party that was truly worried about losing elections would not throw tens of millions of people off of Medicaid or do any of the other things that the new regressive bill will do.
Even so, Democrats have been gleefully talking about how the Republicans are signing their own political death warrants for the 2026 midterm elections. (Just as Republicans' attacks on women's freedom were supposed to guarantee a big Democratic win in 2024, but I digress.) Democrats of course need to say optimistic things, but I continue to believe that there is no way that Republicans will allow themselves to lose the House, Senate, or White House ever again. And even if the Democrats somehow were to take back the House (and even the Senate) in 2026, what would Trump do? Whatever he wants to do, knowing that the courts will not stop him and that Congress can only debate and cast votes that he can then ignore.
Again: Say anything to take power. Do everything to hold power. Trump promised during the campaign that he would never do what he is now doing, and he now has power. The Supreme Court has made it clear that he can abuse that power and amass more. And the idea that an election sixteen months from now will neutralize him has quickly become a quaint notion.
I have never said that it is impossible to come back from dictatorship, only that the United States was inevitably headed toward it. Everything that has been happening makes stopping and ultimately turning back the post-constitutional regime much more difficult. This is the moment that most of us hoped would never come, with many people allowing hope to stand in for realism. It will take hard work, clarity of mind, and a lot of luck for this to end any time soon. People who have been living in denial need to stop being obtuse. The stakes now could not be higher.
- Neil H. Buchanan