American Democracy On Notice— The Founders’ Nightmare Was Turned Into A Campaign Platform

This Isn’t A Drill... It Never Was

JD Vance is a blunt instrument. Trump or Susie Wiles rolls him out when they need an asshole who has MAGA cred and some kind of ex officio gravitas. During an interview with Ross Douthat recently, he “offered some unsolicited advice to Chief Justice John Roberts: the federal courts need to be more deferential to Presidential authority, and the Supreme Court must do a better job of keeping lower-court judges in line,” claiming the courts are trying to overthrow democracy and the will of the people. 

Ruth Marcus reported that Vance’s “diagnosis is ‘profoundly wrong.’ It misconceives the essential role of the judiciary, which is to superintend the division of powers among the three branches of government— in fact, Roberts said that the Court’s job is to check excesses of both Congress and the executive— and, just as important, to preserve individual rights against governmental overreach. In fact, the courts have been diligently performing their constitutionally assigned role, and polling suggests that the American people are happier with the judiciary’s performance on that score than they are with Trump’s.”

Remember, Vance is a fascist little shit. Marcus reminded her readers that in 2021 he said that if he had to give Señor T one piece of advice “it would be to ‘fire every single mid-level bureaucrat, every civil servant in the administrative state. Replace them with our people. And when the courts— because you will get taken to court— and when the courts stop you, stand before the country like Andrew Jackson did and say: The chief justice has made his ruling. Now let him enforce it.’ Roberts warned against remarks like these in his latest year-end report on the federal judiciary, saying that ‘elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.’ The dispute assumed higher stakes after Trump took office, and federal courts across the country started to push back on the new Administration’s behavior. ‘Judges aren’t allowed to control the executive’s legitimate power,’ Vance posted on Twitter on February 9th. His exchange with Douthat represents another escalation of the Administration’s anti-court rhetoric. Vance’s argument— that judges are not simply treading on the President’s constitutional authority but actively frustrating the will of the electorate— is, at bottom, a repudiation of the constitutional structure. It is ‘emphatically the province and duty of the Judicial Department to say what the law is,’ as Chief Justice John Marshall put it in Marbury v. Madison— even when, and perhaps especially when, its conclusion is unpopular. That is the reason federal judges are not elected and are granted lifetime tenure. Alexander Hamilton termed this arrangement ‘the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.’”

Vance views the courts standing up to the regime’s lawlessness “as the courts telling the American people that ‘they’re not allowed to have what they voted for.’ He is wrong. There’s no doubt that many voters were unhappy about illegal immigration during the Biden Administration and that this contributed to Trump’s victory last November. But the polls suggest that at least some of his supporters did not vote for the kind of unfairness inflicted on Özturk, Abrego Garcia, and others… More than half of respondents in a CNN poll said that Abrego Garcia should be returned to the United States; just twenty per cent disagreed. None of this bodes well for Vance’s argument that judges are trying to usurp the role of American voters. In the clash between the Administration and the judiciary, the public seems more anxious about the Administration’s combative stance than about the supposed ‘rogue’ judges. Asked in the Post survey whether federal judges who believe a Trump policy is illegal should have the power to block it until a trial is held, sixty-seven per cent of respondents said yes. Assessing the behavior of federal judges, sixty-two per cent said that they were trying to enforce legal limits on Trump’s authority; just thirty-five per cent said that the judges were seeking to interfere with it. And sixty-five per cent said that the Trump Administration is trying to avoid complying with court orders. Vance may lecture the Chief Justice all he wants, but people see this Administration’s assault on the courts for the danger that it is.”

Zac Anderson warned of an all-out war brewing between the Trumpist regime and the judiciary, and that “as the clash becomes a defining moment in the president's second term, conservative activists are pushing Congress to rein in federal judges and pressing Trump to intensify his fight with the courts… Arresting judges. Threatening their impeachment. Routinely slamming them on social media and trying to go around them completely. Trump and his allies have led an intense pressure campaign on the judiciary four months into his administration. Both sides of the political spectrum are using the term constitutional crisis... Frustrated with unfavorable court decisions, the administration has taken an increasingly hostile stance to the federal bench. Trump complained…”

“Among Trump's biggest obstacles so far during the second term,” wrote Anderson, “is the judiciary, which repeatedly has blocked some of his actions, calling his methods unlawful and drawing his ire.” The regime’s in-house Nazi, Stephen Miller, calls it a “judicial coup” while Bannon says it’s a “judicial insurrection.”

Yesterday, Ron Brownstein wondered aloud who can stop Trump’s headlong rush towards authoritarianism at this point, asking if Trump is the president the Founders tried to guard against. He has to ask??? We’re in the first months of a presidency marked by contempt for the rule of law— by some one who provoked a literal insurrection attempt— and then ran a campaign platform built on vengeance, retribution and the explicit promise to wield the Justice Department as a personal cudgel against political enemies. If Trump isn’t the nightmare the Founders warned us about, then who the hell is? We’re watching a would-be despot bulldoze through every guardrail while much of the political establishment dithers, rationalizes  or outright cheers him on. The regime isn’t just threatening democracy; it’s openly working on dismantling it. Project 2025 lays out a blueprint for centralized executive power that would have made George III blush. It prepped Trump loyalists to purge the civil service, install ideological enforcers and reshape federal agencies into tools of ideological domination— as they’ve been doing. The Founders feared tyranny arising from unchecked power; Trump is trying to build an apparatus that would make such tyranny not only possible, but permanent. If Señor T isn’t the autocrat the Founders feared— a demagogue who treats checks and balances as speed bumps— then the Constitution was never worth the parchment it was written on. He’s the collapse of American democracy in real time. Believe me, this is more about raw, unaccountable, punitive power than policy. It’s not creeping authoritarianism; It’s sprinting fascism in a red tie and baseball cap. We need to name it, shame it and break its momentum… or we’ll be reading about the Republic in past tense while the Trump regime rewrites the future in the image of vengeance.

And Brownstein has to wonder? Even after acknowledging that “Trump’s second term often seems like a roman candle of grievance, with the administration spraying attacks in all directions on institutions and individuals the president considers hostile. Hardly a day goes by without Trump pressuring some new target: escalating his campaign against Harvard by trying to bar the university from enrolling foreign students; deriding musicians Bruce Springsteen and Taylor Swift on social media; and issuing barely veiled threats against Walmart and Apple around the companies’ responses to his tariffs.”

Remember, no matter how much howling Trump does against Springsteen and Swift, the anti-patriotic garbage musicians who support him— from Nugent and Kid Rock to Jason Aldean, Lil Pump and Waka Flocka (“All Joe Biden voters, get out of my concert”)— will never be musical or cultural icons and will never replace them in the hearts and souls of music fans.

Brownstein is nobody’s fool and he noted that even if out sometimes appears that Señor T’s “panoramic belligerence may appear as to lack a more powerful unifying theme than lashing out at anything, or anyone, who has caught his eye… to many experts, the confrontations Trump has instigated since returning to the White House are all directed toward a common, and audacious, goal: undermining the separation of powers that represents a foundational principle of the Constitution… Yuval Levin, director of social, cultural and constitutional studies at the conservative American Enterprise Institute, also believes that Trump is pursuing the most expansive vision of presidential power since Woodrow Wilson over a century ago. But Levin believes Trump’s campaign will backfire by compelling the Supreme Court to resist his excesses and more explicitly limit presidential authority. ‘I think it is likely that the presidency as an institution will emerge from these four years weaker and not stronger,’ Levin wrote in an email. ‘The reaction that Trump’s excessive assertiveness will draw from the Court will backfire against the executive branch in the long run.’ Other analysts, to put it mildly, are less optimistic that this Supreme Court, with its six-member Republican-appointed majority, will stop Trump from augmenting his power to the point of destabilizing the constitutional system. It remains uncertain whether any institution in the intricate political system that the nation’s founders devised can do so.”

One defining characteristic of Trump’s second term is that he’s moving simultaneously against all of the checks and balances the Constitution established to constrain the arbitrary exercise of presidential power.

He’s marginalized Congress by virtually dismantling agencies authorized by statute, claiming the right to impound funds Congress has authorized; openly announcing he won’t enforce laws he opposes (like the statute barring American companies from bribing foreign officials); and pursuing huge changes in policy (as on tariffs and immigration) through emergency orders rather than legislation.

He’s asserted absolute control over the executive branch through mass layoffs; an erosion of civil service protections for federal workers; the wholesale dismissal of inspectors general; and the firing of commissioners at independent regulatory agencies (a move that doubles as an assault on the authority of Congress, which structured those agencies to insulate them from direct presidential control).

He’s arguably already crossed the line into open defiance of lower federal courts through his resistance to orders to restore government grants and spending, and his refusal to pursue the release of Kilmar Abrego Garcia, the undocumented immigrant the administration has acknowledged was wrongly deported to El Salvador. And while Trump so far has stopped short of directly flouting a Supreme Court order, no one could say he’s done much to follow its command to “facilitate” Abrego Garcia’s return.

Trump has trampled traditional notions of federalism (especially as championed by conservatives) by systematically attempting to impose red state priorities, particularly on cultural issues, onto blue states. His administration has arrested a judge in Wisconsin and a mayor in New Jersey over immigration-related disputes. (Last week, the administration dropped the case against the Newark mayor and instead filed an assault charged against Democratic US Rep. LaMonica McIver.)

Most unprecedented have been Trump’s actions to pressure civil society. He has sought to punish law firms who have represented Democrats or other causes he dislikes; cut off federal research grants and threatened the tax exempt status of universities that pursue policies he opposes; directed the Justice Department to investigate ActBlue, the principal grassroots fundraising arm for Democrats, and even ordered the DOJ to investigate individual critics from his first term. Courts have already rejected some of these actions as violations of such basic constitutional rights as free speech and due process.

It’s difficult to imagine almost any previous president doing any of those things, much less all of them. “This ability to just deter other actors from exercising their core rights and responsibilities at this kind of scope is something we haven’t had before,” said Eric Schickler, co-author with Pierson of the 2024 book Partisan Nation and also a UC Berkeley political scientist.

For Trump’s supporters, the breadth of this campaign against the separation of powers is a feature, not a bug. Russell Vought, director of the Office of Management and Budget and one of the principal intellectual architects of Trump’s second term, has argued that centralizing more power in the presidency will actually restore the Constitution’s vision of checks and balances.

In Vought’s telling, liberals “radically perverted” the founders’ plan by diminishing both the president and Congress to shift influence toward “all-empowered career ‘experts’” in federal agencies. To restore proper balance to the system, Vought argued, “The Right needs to” unshackle the presidency by “throw(ing) off the precedents and legal paradigms that have wrongly developed over the last two hundred years.”

Trump summarized this view more succinctly during his first term, when he moemorably “I have an Article II (of the Constitution), where I have to the right to do whatever I want as president.”

Whatever else can be said about the first months of Trump’s second term, no one would accuse him of faltering in that belief.

… [A]s Pierson and Schickler argued in Partisan Nation, the separation of powers generally worked as intended through most of US history. “For almost a quarter of a millennium,” they wrote, “the operation of American government tended to frustrate the efforts of a particular coalition or individual to consolidate power, dispersing political authority and encouraging pluralism.”

The founders’ strategy, though, was showing signs of strain even before Trump emerged as a national figure. In recent decades, Pierson and Schickler argue, the increasingly polarized and nationalized nature of our political parties has attenuated the Constitution’s system of checks and balances and separation of powers (a structure often described as the Madisonian system). While Madison and his contemporaries thought that other officials would focus primarily on defending their institutional prerogatives, in modern politics, state and federal officials, and even judicial appointees, appear to prioritize their partisan identity on the Democratic or Republican team.

That’s steadily diminished the willingness of other power centers to push back in the way Madison expected against a president from their own side overstepping his boundaries. Trump is both building on that process and escalating it to an entirely new level of ambition.

Will Trump succeed in overwhelming the separation of powers and concentrating power in the presidency– potentially to the point of undermining American freedom and democracy itself?

Even to pose those questions is to contemplate possibilities that Americans have rarely needed to imagine.

Brettschneider’s book traces the history of public resistance to presidents who threatened civil liberties and the rule of law, including John Adams, Andrew Johnson and Richard Nixon. He says those precedents offer reason for optimism, but not excessive confidence, that the system will survive Trump’s offensive. “We have these past victories to draw on,” Brettschneider said. “But we shouldn’t be naïve: The system is fragile. We just don’t know if American democracy will survive.”

Levin, the author of American Covenant, an insightful 2024 book on the Constitution, doesn’t see Trump presenting such an existential challenge. He agrees Congress is unlikely to muster much resistance to Trump’s claims of unbounded authority: “The weakness of Congress, and the vacuum that weakness creates, is the deepest challenge confronting our constitutional system, even now,” Levin wrote. But he believes the Supreme Court ultimately will constrain Trump.

Levin believes the court will distinguish between what he calls the “unitary executive” theory– which posits the president should exert more authority over the executive branch– and the “unitary government” theory, which would expand the president’s power over other branches and civil society. “So this court will simultaneously strengthen the president’s command of the executive branch … and restrain the president’s attempts to violate the separation of powers,” Levin predicts. That expectation underpins his belief that Trump’s power grabs ultimately are more likely to weaken than strengthen the presidency.

Analysts to Levin’s left are much less confident the same Republican-appointed Supreme Court majority that voted to virtually immunize Trump from criminal prosecution for official actions will consistently restrain him– or that it is guaranteed Trump will comply if it does. They tend to see Trump’s second term as presenting an almost unparalleled stress test for the Constitution’s interlocked mechanisms to preserve freedom and democracy.

The fact that the Madisonian system of checks and balances, separation of powers and federalism has “sustained itself for 235 years can give you a lot of confidence” that it will endure, Schickler said. “What I would say is: We shouldn’t be too confident. It broke once before in the Civil War. It’s not going to break in the same way, but the possibility of it breaking is real.”

The first months of Trump’s return have revealed his determination to shatter the defenses that system has constructed against the misuse of presidential power. Less certain is whether officials from the other branches of government, leaders in civil society, and even ordinary Americans, will show the same determination to defend them.

This regime is anything but coy or, when it doesn’t want to be, vague. It is spelling it out, line by wretched line. Project 2025 isn't a white paper— it’s a blueprint for a dictatorship in everything but name. They’re purging civil servants, bending the military to the mad man’s will and using the full machinery of the federal government to punish dissent. And the courts? We’ll see. This isn’t some theoretical slippery slope we’re looking at here. We’re already careening downhill. Trump and his acolytes are planning the end of democratic government in plain sight. The question isn’t whether the Founders foresaw this moment— they certainly did. The question is whether we still have the courage, the clarity and the collective will to stop it. The sirens are blaring... a lot louder than this: