Filling sandbags

Nine wins to be thankful for

AP Photo/The Telegraph Herald, Jessica Reilly

In February, we wrote about reverse-engineering autocracy and how thinking like authoritarians can help defeat them.

Big picture, our strategy is built on three maxims:

1. Authoritarianism wins by picking off competing power centers

2. Authoritarianism loses when other power centers act collectively

3. Democracy wins by building power outside the executive

It’s a useful framework that’s been mostly validated over the last six months. But in retrospect, the obvious follow-up question is: What happens when things don’t go exactly as hoped?

While Trump’s entrenchment agenda is far from complete, many key power centers have — to various degrees — been cowed. And the collective action has been inconsistent. What now?

Here, too, learn from the autocrat's strategy.

Instead of destroying democracy in one big coup d’etat moment, modern authoritarians attempt to dismantle it inch-by-inch until they’re effectively all-powerful. That’s why there’s no clear line between democracy and authoritarianism.

To counter an incremental assault, we also need to work incrementally. Think of it like sandbags. On their own, grains of sand — or even a burlap sack full of them — do little against a flood. No matter what, sandbags are never going to prevent all water damage. But add up enough of them, fast enough, and they can redirect the flow and ward off the worst of a disaster. They give us the chance to rebuild.

That’s the sandbag effect.

We’re very much in the “holding back the flood” phase of the project to defend our democracy. We’re going to be there for a while. And, yes, it’s still far from enough — but this week the sandbags are starting to pile up.

Why incremental wins matter

The Washington Post’s Amber Phillips has a great newsletter this week about some of the significant recent wins for democracy.

As I told her for that piece:

Authoritarianism works, in part, by attacking everywhere. It tries to overwhelm a democracy with a wave of stories that will shock, numb, and demoralize its citizens into acquiescence. But that’s never the whole story — and the wins for democracy are often just as prevalent as the losses, albeit usually less shocking.

Holding on to incremental wins is part of how we blunt the shock-and-awe strategy coming from the White House. Donald Trump wants you to feel overwhelmed and despondent. In fact, he’s counting on it — that’s the only way the authoritarian project succeeds.

If the American people believe democracy is a lost cause, then it becomes one.

Incremental wins are about more than just mindset, though. Authoritarianism seeks to pick off competing centers of power — and it really does need to capture most or all of them. So everything, anything, that stops, slows, or reverses those efforts makes it less likely that the project will succeed.

Because there is no single, decisive battle, that means that every little win adds up.

Nine wins this week worth holding on to

This week, democracy arguably won a lot more than it lost. Some headlines:

One — CalMatters: Trump broke the law by sending National Guard to L.A., federal judge rules.

A 19th Century law called the Posse Comitatus Act defines what the military can do on U.S. soil. President Trump broke that law by sending the National Guard to L.A., a federal judge rules.

This is a big deal. Posse Comitatus is the bedrock protection that draws the line between law enforcement and the federal military. It was created to defend American citizens against the possibility that the central government would send soldiers against them. (Protect Democracy filed an amicus brief on behalf of retired senior national security leaders in this case.)

Two — Wall Street Journal: Appeals court rejects Trump’s global tariffs.

Nowhere in the statute does the term “tariff” or synonyms like “tax” and “duty” appear, the court observed. When “Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly,” the court said. “This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution.”

Trump’s tariffs have been one of his most sweeping (and economically consequential) power grabs. He is attempting to usurp a foundational power of Congress spelled out in the Constitution.

Read more: Arbitrary and unpredictable taxes are, quite literally, what the Founders rebelled against.

The courts are right to stand up. (We also filed a brief in this case — this one explaining how the tariffs “raise virtually every red flag that jurists and scholars have identified in warning about how emergency powers may be abused.”)

Three — The New York Times: Federal appeals court reinstates an F.T.C. commissioner fired by Trump.

Since March, the F.T.C. has been led only by Republicans. Ms. Slaughter said in an interview Tuesday evening that she planned to go to the F.T.C. on Wednesday morning to work. “Amid the efforts by the Trump administration to illegally abolish independent agencies, including the Federal Reserve, I’m heartened the court has recognized that he is not above the law,” Ms. Slaughter said.

Said my colleague Amit Agarwal: “Congress intentionally structured the FTC to reap the benefits of diverse and dissenting viewpoints like our client’s, but President Trump is unlawfully trying to rewrite that law by fiat.” This case may well be a precursor to the fate of the Federal Reserve. Pay attention. (Disclaimer: Protect Democracy represents Commissioner Slaughter in this suit.)

Four — WGN Chicago: Trump seemingly walks back decision on sending troops to Chicago.

Just one day ago, President Donald Trump declared there’d be a surge in federal troops in Chicago, but on Wednesday evening, he walked that back.

If this retreat holds, it will be a fairly consequential victory for democracy. Mayors and governors stood up and fought back — both in the courts and in public opinion — and the administration seems to be backing down. (This is exactly what we said needed to happen: How to stop Trump’s National Guard weaponization.)

Five — TheUpshot: In budget logs it tried to hide, White House wrests more control over spending.

In more than 100 cases this year, Office of Management and Budget officials who sign off on funds for federal agencies have attached unusual conditions to the money, including requirements that funds meant to reflect Congress’s priorities be spent only if they align with the president’s views. The moves lay the groundwork for the Trump administration to choke off billions of dollars budgeted by Congress for education, health, housing and research programs.

In some cases, the administration has clearly blocked funding for specific programs. In others, the threat lurks in footnotes tucked in detailed budget logs that congressional appropriators are racing to decipher as their conflict with the budget office grows.

This is a sweeping, data-driven investigation by the country’s top newspaper of a truly astronomical pattern of wrongdoing by the White House. (Seriously, check it out for yourself.)

Why is this a win? Because the White House did not want you to know about any of this. Protect Democracy (with our partners at CREW) had to sue to get this database back online. The administration was forced to comply with the law, and now we can all see how they’re breaking the law — and can work to stop it. (You can read all about what it means, and access the data directly, at our site: OpenOMB.org.)

Six — CBS News: D.C. grand jurors reject latest wave of Justice Dept. indictment requests.

This grand jury's rejection of the Justice Department's request for an indictment was one of at least four such instances in the past week in which a grand jury denied an indictment in the District of Columbia.

"Not only have I never heard of this happening, I've never heard of a prosecutor who's heard of this happening," said former federal prosecutor Brendan Ballou, who served in the U.S. Attorney's Office for in D.C. until January 2025. "This is not the fault of career prosecutors, but rather the office's failure—again and again—to secure indictments suggests that the administration has absolutely destroyed its credibility with jurors.”

Among the many safeguards against tyranny built into our system? When the government wants to imprison its citizens, it generally needs other citizens — jurors — to sign off. That they’re refusing to go along with the White House’s attempted show of force in Washington is a very positive sign.

Seven — Lawfare: Fifth Circuit grants preliminary injunction against AEA Tren de Aragua removals.

The proclamation, which invoked the Alien Enemies Act (AEA), purported to authorize the removal of Venezuelan nationals alleged to be members of the transnational criminal organization, Tren de Aragua (TdA). The AEA was passed in 1798 during escalating tensions with France as one of the four Alien and Sedition Acts and remains the only one still in effect today. It authorizes the president, during wartime or in response to an “invasion or predatory incursion” by a foreign nation or government, to apprehend, restrain, and remove foreign nationals of the enemy country from the U.S.

The Alien Enemies Act may not be in the news so much today. But the litigation around the Trump administration’s aggressive attempts to weaponize the 18th century law is ongoing. The courts remain highly skeptical.

Eight — POLITICO: Judge rules White House ‘pocket rescission’ gambit is illegal.

The ruling comes just days after White House budget chief Russ Vought announced a plan to withhold about $5 billion in aid despite an Oct. 1 deadline to spend the congressionally appropriated funds. It’s a maneuver he has labeled a “pocket rescission” — an attempt to circumvent Congress’ power of the purse by declaring his intent to cut spending with limited time for lawmakers to respond.

Ali, a Joe Biden appointee, ruled that the tactic is illegal — that until Congress acts, the Trump administration is required to spend congressionally approved funding.

Impoundments like these are illegal. Read our “pocket rescissions” explainer. Appropriations by Congress — as in this case — are laws. The White House does not have the authority to override Congress, regardless of what rhetorical tricks they engage in. (For more on rescissions and impoundment, check out Cerin Lindgrensavage’s conversation with Law Dork Wednesday — or her piece in Lawfare: Past pocket rescissions are not precedents for power Vought claims.)

And finally, arguably the biggest one…

Nine — The Harvard Crimson: Judge hands victory to Harvard in funding lawsuit, ruling Trump administration’s freeze unconstitutional.

The decision from United States District Judge Allison D. Burroughs hands Harvard a summary judgment win on core constitutional grounds, finding that the administration’s freeze orders were retaliation for protected speech. …

“A review of the administrative record makes it difficult to conclude anything other than that Defendants used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities,” she wrote in her order.

This case is — at its core — over whether the First Amendment protects American higher education from politicized attacks by the federal government. Or, if the president is permitted to wage war on universities that he does not like. (Read more: Universities have no choice.) For now, free inquiry — and free speech — still stands thanks in part to this ruling.

Oh, and one more thing just for good measure: Nearly a majority of Americans “strongly disapprove” of the job Trump is doing as president.

Nothing is decisive — yet everything is critical

No one knows what will happen next or how many of these wins will stand. (It seems quite likely that the Supreme Court will, in at least some of these cases, intervene to rescue the White House.)

That’s not really the point.

None of these, in isolation, are the decisive event between democracy and authoritarianism. There have been hundreds of moments like these, and there will be many hundreds more over the months and years to come. All of them are critical, though. They either add up to a formidable dam against the flood of authoritarianism — or they will fall short, and everything collapses.

We won’t know until the end. But for now, the wins keep coming. So keep the faith. And keep doing your part to fill those sandbags.

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What else we’re tracking:

• Sam Bagenstos was the OMB general counsel under Biden. He has a grave but critical warning about any post-Trump policy platform: “The institutions of government necessary to implement a new agenda in many cases simply won’t exist.” Project 2029 rebuilding efforts take their eyes off the ball.

• September 17 is Constitution Day. Two events to join. On the 16th, join Keep Our Republic for a virtual town hall with Congressman Dick Gephardt and four retired federal judges. Then, on the 17th, join the Task Force For American Democracy for a discussion on Everyone's Constitution: Why it matters to all of us.

• ProPublica found that, incredibly, three Trump cabinet members all have the same mortgage error as the one Trump is using as pretext to try to fire Fed Governor Lisa Cook. This case is black-and-white, but in less clear examples, how can Americans tell the difference between legitimate law enforcement and politicized weaponization? Protect Democracy has a new interactive tool, check it out. (Kristy Parker and Molly Golski explain here: Is it law enforcement or is it retribution?)

• The Supreme Court is deciding whether to strike down the provision in the Voting Rights Act that prohibits states and local governments from racial discrimination in election contexts. Read our amicus brief on behalf of former Republican members of Congress who voted for the VRA here.

• The Trump administration “blew up” a suspected Venezuelan drug boat, killing 11 people. Former Department of Defense lawyer Ryan Goodman: “Hard to see how this would not be ‘murder’ or war crime under international law that DoD considers applicable.”

• Protect Democracy’s Jared Davidson writes in Slate on dark parallels to Trump’s attacks on the Federal Reserve. “The last time a U.S. president subordinated the laws and norms that protect our economy to his own political ambitions, America faced the worst stagflation the country had ever seen.”

• One of the more egregious examples of weaponized law enforcement yet, per the Times: Texas “Attorney General Ken Paxton is waging ‘legal war’ against Beto O’Rourke, a possible Democratic rival, threatening jail and an investigation that could bankrupt his organization.”

• It’s totally a stunt, but just for the record: The president nicknaming the Department of Defense — whose name is set by statute — as the “Department of War” is both meaningless and ahistorical. (The name was never “changed,” it was created as a consolidation of the War Department, the Navy Department, and the newly created Department of the Air Force.) Still, the signals Trump is sending about the personalization of the military are real and dangerous, writes Garrett Graff.

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What you can do to help:

Send new guidance materials to civil servants in your life. Anyone you know who works for the federal government. Anna Dorman:

Civil servants across the government continue to summon incredible bravery to speak out against administration attacks on vital programs serving the American people (see EPA, NSF, FEMA, NASA, NIH, CDC).

For the rest of us, it’s our job to have their backs. This week, check in on anyone you know who works for the federal government and share this new compilation of resources to help navigate attacks on the federal workforce and retaliation for standing up.