The fifth of July

We don’t get to know how this all ends

248 years ago today, the delegates woke up in Philadelphia and — we have to imagine — felt a moment of panic.

It was a warm day. At 6AM, Thomas Jefferson noted the temperature. 71.5 degrees. 

The day before, the fourth, had been momentous and somber. But on the fifth, the cold reality of the task ahead must have set in. The odds against independence. The personal risk to the signatories and their families (many thought they had just signed their own death warrant). The difficulty not only of overthrowing autocracy but of replacing it with something better. After all, no western society in over 2,000 years had replaced a monarch or emperor with anything other than an emperor or monarch. 

Indeed, achieving the promises of the Declaration of Independence ended up a centuries-long project. Even today it remains a work in progress. 

I’m thinking about July 5, 1776 because today, this day-after‚ carries its own sense of foreboding. (And, yeah, maybe even panic.) The democratic project those signatories began in Philadelphia is under grave strain. 

The threat to democracy is much sharper than it was even two weeks ago

In the last week, the Supreme Court — a majority of whom were either appointed by Donald Trump or are married to people openly supportive of his attempts to overturn the 2020 election — greased the wheels for the authoritarian project to return with a vengeance in 2025. 

Most importantly, the Court went even further than feared in declaring the president above the law. Kristy Parker and Conor Gaffney write about the “grim” implications:

There is no mention of presidential immunity from criminal prosecution in the Constitution’s text. For nearly 235 years, the courts, the Justice Department, the American public, and former presidents themselves have assumed that presidents who violate the law can be prosecuted for doing so after they leave office. And yet our current Supreme Court decided none of that mattered. 

In Trump v. United States, the Court ruled 6-3 (on ideological lines) that former presidents have absolute immunity from prosecution for crimes committed using their “core constitutional powers,” have “presumptive” immunity for other crimes if they involved “official acts,” but lack immunity for any crimes committed as “private” or “unofficial acts.”

Read their whole analysis of the implications of the ruling here: What happens now because of the immunity ruling. 

This ruling will, perhaps more than any other, crown the Roberts Court’s legacy on democracy. Which — if you care about voting rights, money in politics, or gerrymandering — is a very high bar. If you want more legal analysis on the case I recommend Rick Hasen and Adam Klasfeld and Paras Shah. In short: presidents can no longer be convicted for using the powers of their office to commit crimes. And for any conduct that could theoretically be prosecuted, there are steep new barriers to prosecution. 

The president is now functionally above the law.

All power to the president and courts

If there was a unifying theme to this Supreme Court term, it’s power. Specifically, the rapid consolidation of power in two institutions: the courts and the president. Not even really the presidency — the president. 

While they didn’t get the same headlines, other landmark cases this term actually chipped away at the parts of the executive branch that aren’t as directly under presidential control, especially independent agencies and the civil service. In Loper Bright v. Raimondo, the Court seized an unprecedented power to rule over regulatory minutiae that had largely been in the domain of the nonpartisan civil service. I recommend Kate Shaw’s explanation: The Imperial Supreme Court.

The Supreme Court has now decreed that it, rather than agencies staffed by individuals with deep subject matter expertise and answerable to presidential appointees, will be the final arbiter of the meaning of every statute passed by Congress.

What does it mean to require agencies to take the “best” or “appropriate” or “feasible” steps to reduce air and water pollution or to keep workplaces safe? While [the old standard] directed courts to defer to agencies when they brought their expertise to bear on such questions and produced reasonable answers, the court will now decide for itself.

Similarly, in SEC v. Jarkesy, it ruled that administrative tribunals routinely used by agencies like the IRS and FTC are unconstitutional — any of that enforcement must now go through federal courts. And in Corner Post, Inc. v. Board of Governors SCOTUS essentially indefinitely extended the statute of limitations for legal challenges against regulations. (See the pattern in these?) 

What does this all mean? Look at the overall distribution of power in our democracy right now. 

Read more: The invisible roots of dysfunction

With Congress sidelined by gridlock and dysfunction (more about why here), never in our country’s history have seven people — the president and six votes on the Supreme Court — had as much power as they do right now. 

The stage is set for the Authoritarian Playbook 2025

Coincidentally, if you were planning a project to dramatically reshape the federal government into a tool for the president to wield against his enemies, it’s hard to imagine a better setup than this week.  

We don’t know what the Court will do in the future — it’s not clear the Court even knows (see e.g., the confusion already apparent in footnote 3 on page 32 of the majority opinion). But the immunity decision surely will embolden Trump and his allies when it comes to carrying out core parts of the authoritarian playbook for 2025, including things like: 

• Explicitly offering pardons to encourage lawbreaking. 

• Using regulatory powers to retaliate against critics. 

• Instructing the Department of Justice to prosecute his enemies on sham charges.

• Ordering federal law enforcement to use force against protestors.

• Purging the civil service of nonpartisan experts and replacing them with cronies.

Certainly Trump’s orbit is taking it as vindication. The reaction from the Heritage Foundation, authors of Project 2025: “we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be." (Video)

Yikes!

We don’t get to know how this all ends 

So what do we do? 

Well, that’s why I keep thinking about those 56 signatories and how they might have felt on their July 5th. 

I don’t know how this story ends.

No one does. We don’t get to know if an autocrat will return to the White House and exact his retribution. We don’t get to know if the rule of law will hold. We don’t get to know if this institutional death spiral will continue and if polarization will eventually tear our country apart and if political violence will get worse and if federal troops will be sent into blue states on mass deportation raids and if a politicized Fed will wreck the economy and if so much of what we hold dear will be lost. 

We don’t get to know if the forces of democracy will win — or if authoritarianism will triumph. By the time we know, it’ll be too late. 

But those guys didn’t know either.

They didn’t know that they’d succeed in overthrowing a monarch and setting up a republic that now, almost a quarter millennium later, we’d all be fighting to defend. 

That didn’t stop them from getting to work, putting everything they had into the effort. 

All we can do is the same.

So let’s dust ourselves off, clean up the fireworks, and do everything we can, each of us, in the coming months to make sure our democracy endures. 

Let’s be ruthless and strategic. Let’s put aside personal advancement and politics and ego. Focus on the things we can control. Don’t get too distracted by the things we can’t. Believe that democracy can win. 

Happy Fifth of July. 

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What else we’re tracking: 

• Axios has, in my view, the best plain-english readable summary of Trump’s second term agenda yet — “Behind the Curtain: Trump's imperial presidency in waiting.”

• Speaking of Project 2025, Democracy Forward read all 900 pages so you don’t have to. Read: “The People’s Guide to Project 2025.” 

• Texas attorney general Ken Paxton’s effort to shutter the El Paso Catholic charity Annunciation House — accusing it of being a "stash house" for providing services to migrants — has failed (for now). The case is widely seen as a harbinger of possible future efforts to go after charitable services for refugees. 

• Echelon Insights released their latest poll on what the U.S. would look like with a multi-party system. No surprise, but I think this in itself is a strong case for proportional representation in the U.S.

• Per WaPo, the Justice Department plans to pursue Trump cases past Election Day, even if he wins (which, yes, is how this is supposed to work).

• Just Security has a wonderful holiday weekend reading list “with a focus on stories that illuminate common threads between people in the United States or help to articulate new or renewed visions for America’s future.” 

• Thomas Carothers and Brendan Hartnett have a thought provoking new study on the causes of democratic backsliding in the Journal of Democracy: “Backsliding is less a result of democracies failing to deliver than of democracies failing to constrain the predatory political ambitions and methods of certain elected leaders.” 

• … Honestly, the entire July issue of the JOD is worth a read. Viri Ríos on why Mexico is not on the brink, Manuel Meléndez & Alberto Vergara on the “Bukele Model” in El Salvador, Adam Przeworski on who gets to decide what’s democratic, and more. 

• In all the darkness, I love these profiles from USA Today on people doing the hard work to sustain democracy — from a Capitol tour guide to an elections official to a Civil Rights leader keeping the flame alive.