Legalistic Cover Stories and Unchecked Dictatorial Power
It is increasingly impossible to deny that the second Trump presidency is a no-holds-barred affair, with the United States now ruled by a regime that treats laws and especially norms as quaint vestiges of the time before America regained its greatness. In this context, it is admittedly a bit odd that we are supposedly seeing the country being made great "again," because that must mean that the previous era of greatness was possible even though elections were relatively meaningful and the separation of powers was still a pillar of constitutional governance. Whenever that previous great period was, it happened without completely casting aside the rule of law. Why is it necessary to throw it all away now?
Granted, the most likely throwback era in the minds of Donald Trump and his supporters is the 1950's, when Black people were living under the constant threat of Jim Crow-enabled lawlessness and physical brutality, while women had no legal control over their own bodies and could not buy property (or even open bank accounts in their own names). For far too many people in those years, the rule of law was at best a sometime thing, to be sure. What makes the current era different is that there is no longer an even plausible effort to pretend that the country is still a constitutional democracy.
Even so, "no longer an even effort" does not mean "no effort." As I reminded Dorf on Law's readers by posting two Classic columns last week (here and here), autocratic countries can display the earmarks of banana republics (an admittedly somewhat freighted term) or instead engage in a more nuanced, velvet-gloved dictatorial effort that I called "legalistic lawlessness." (The same regime can indulge in both forms of totalitarian rule, of course.) But what do those two terms mean? After briefly describing the former, I will focus on the latter in the remainder of this column.
Rule by brute force has been part of human existence for as long as there have been humans (and even in prehuman societies). Sending people out to grab other people to be punished or killed can be an effective form of social control, but it does have the drawback of being obviously unjustified and arbitrary. Death squads by any name, whether military or paramilitary, are not there to make people feel that justice is being done. That is why even brutal dictators often decide to go through the motions of creating legalistic processes. Even when people understand that those processes are little more than kangaroo courts, the regime can then say that they are following "the law."
Before Trump came along, the best present-day example of a legalistically lawless regime was Vladimir Putin's Russia. Even though Putin's tactics included plenty of extrajudicial poisonings, defenestrations, and so on, he has bothered to stage sham elections and to make a show of creating other legal features common among states that are truly subject to the rule of law. A month ago, The New York Times ran a guest op-ed written by an expert on Russian politics named Putin Is Obsessed With Something He Can’t Get." And what Putin cannot get is the legitimacy that would come from being perceived by European and other democratic leaders as a non-dictator. Baunov writes:
We tend to think of a dictator as someone who tramples the law — and that’s absolutely true. But for a dictator like Mr. Putin, who rose from the disciplined ranks of the security services to the presidency by following orders, it is just as important to be able to cite the law as to break it. Today, every new wave of political repression in Russia is preceded by the passage or revision of a law — so that more and more people can be punished “according to the law,” rather than in violation of it.
In other words, Putin is willing to engage in banana republicanism, but he often tries to present himself as someone who works within the boundaries of the law. The problem is that when a crackdown is "preceded by the passage or revision of a law," that merely makes it obvious that there is no law. As I wrote in the earlier of my two columns linked above:
But why am I calling this legalistic lawlessness, rather than simply a legal regime that I happen to think is regrettable on policy or normative grounds? The answer is that the regime that Republicans are in the midst of creating will not constrain anything that they want to do. That is, it will not be John Adams’s immortal vision of “a government of laws, not of men,” because the supposed limitations that the rule of law provides can be stripped away through doctrines such as standing, justiciability, and so on, along with new statutes that simply enshrine injustice into the law.
Replace "the regime that Republicans are in the midst of creating" with "Putin's regime," and the argument still works; that is, there are no real constraints, despite the veneer of legalism in either country. But is it also true that Baunov's observation that "every new wave of political repression in Russia is preceded by the passage or revision of a law — so that more and more people can be punished 'according to the law,' rather than in violation of it" would be similarly unchanged by replacing "in Russia" with "in Trump's MAGA-fueled America"? Perhaps surprisingly, the answer is yes (although "preceded" is not strictly necessary in the United States).
Movement conservatives have waged some of their most important battles via the legal system, which necessarily involved creating a class of culture warriors who fancy themselves to be brilliant legal scholars and not mere hacks. The Roberts Court will occasionally betray its inability to feel shame by issuing absolute hackwork, most prominently in their gleeful attack on women's freedom in Dobbs, an opinion that led me to pen this description of the Court's reactionary supermajority:
These people have held themselves out as the intellectual vanguard of their political movement, and plenty of non-conservatives have bought into the hype. Now that they have hit the "publish" button on work product that would be fortunate even to earn a review of "meh," we all know better. Power, it turns out, is not merely arrogant. It delights in brazen disrespect.Modesty and grace in victory? No. More like: "Suck it, losers!" They truly did learn the lessons of their party's leader.
This means that there is an army of people who are ready at all times to paper over the Trump administration's lawlessness with legalistic nonsense. I doubt that Trump in fact cares whether or not he is viewed as a tinpot dictator, but Republicans in both the courts and legislatures (national and state) do seem to like the idea of seeming not to flout the law -- if it is not too much of a bother. Whereas Trump is perfectly content to rule by edict, his backers seem to want to make it all look totally legit.
Indeed, this is ultimately what Professor Dorf's series of columns (which has now grown to twenty -- 20!! -- entries) that he calls "Wait, Can He Actually Do That?" is all about. Trump does things, and after each action that he takes, it is interesting to see whether the answer to Professor Dorf's question is (1) "Yes he can probably do that, because there is a way to read the law (often stretching it nearly beyond the breaking point, but not quite) that makes it not quite illegal," or (2) "No, but he will probably get away with it anyway." Back in the good old days, there was a third option ("No, and that's that"); but there is no use living in the past.
In yesterday's "Wait, Can He Actually Do That?" column, for example, discussing Trump's announcement that he was directing his Attorney General to prosecute flag burners, Professor Dorf noted that doing so would blatantly contradict the controlling Supreme Court precedent, R.A.V. v. City of St. Paul. He then wrote: "Unless and until SCOTUS repudiates R.A.V., the flag burning EO will be ineffective as a means of reviving that statute."
And that is precisely my point when I discuss legalistic lawlessness. It is always true that what counts as legal or illegal is contingent on -- not to be too obvious about it -- what the law is. Even so, we do not have to slide down that particularly Nixonian slippery slope and say that whoever is in power by definition never acts lawlessly because they can declare themselves to be in compliance with the law (by changing it, if necessary). We are not required to paraphrase Humpty Dumpty and say that the law means just what Republicans (including their judges) choose it to mean, neither more nor less.
There is, however, that ego-driven aspect of the Supreme Court's super-majority that might have caused them to be a bit circumspect about all of this. They clearly enjoy wielding power and preening around as if they are legal geniuses while doing so. As I wrote in my original "Banana Republic or ..." piece:
Yet there is something comforting about hiding behind legalisms that these conservatives claim to hold dear. Part of it, I think, is that it allows them simply to feel smart. Doing the mental gymnastics necessary to overturn the near-unanimous act by Congress of re-authorizing the Voting Rights Act in Shelby County v. Holder, for example, can be a very enjoyable kind of sophistry—a skill that many conservatives have taught each other at the best law schools in the country.
Almost immediately after the 2020 election, I suggested that the Court's super-majority might try to protect its own relevance and power by defying Trump:
Do any of the six Republican appointees to the Court want their roles to matter in the future, or are they willing to expend all of their institutional importance now in the service of something that they will not be able to undo? That is, are at least some Supreme Court justices interested in continuing to be relevant?
If those Republican appointees were willing to maintain their independence and thus preserve their power, we would not be able to bet the house on the idea that they will roll over on R.A.V. and readily do every other thing that Trump wants them to do. Even with a right-wing Court and a right-wing President, holding that line would have meant that the country had not descended into legalistic lawlessness -- or at least not entirely.
As I noted in "Happy Birthday, America: 249 Years Was a Pretty Darned Good Run," however, the Court in 2025 has said 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." And even that is only relevant in situations where the Court's majority is not full-on MAGA in the first place, which might be a vanishingly small number of cases.
The self-styled legal geniuses on the right will thus continue to go through their rituals of crafting tedious and increasingly unconvincing cover stories, and the ever-pliant media will act as if this is not all a fig leaf that is failing to obscure the shame of a dictatorship. Again, that is the point of not acting like a cheap dictator and instead papering it over in the language of the law. The continued descent into madness will somehow, in the minds of too many people, pass for something other than the exercise of arbitrary power. But that is exactly what it is.
- Neil H. Buchanan