There is no Rubicon

Navigating the descent into lawlessness

In 49 BC, Julius Caesar crossed the Rubicon River in his march on Rome. That moment, for ancient historians, marked the death of the Roman Republic.

Today, 22 centuries later, the line isn’t so clear. Democracies don’t die in a single moment. Instead of armed coups, modern autocrats incrementally and deliberately chip away at the constraints on power until they become effectively all-powerful. Whether in Putin’s Russia or Orbán’s Hungary, there was no hard division between democracy and autocracy; it wasn’t too late until, in retrospect, it was.

As dramatic and horrifying as the White House’s actions may be, we’re witnessing incremental escalations in the struggle between a would-be autocrat and the meaningful constraints on his power. Yes, each and every escalation matters (often immensely so). But don’t lose the big picture: the administration’s efforts to stifle dissent and strongarm the legal system, to kidnap Americans to foreign prisons, to destroy academia, these are all tactics, not outcomes. This is all an emergency — but it’s very far from over.

How to read the struggle between Trump and the judiciary

Three courts have said the Trump administration must “facilitate” Kilmar Ábrego García’s return so he can have his day in court.

But even an order of the Supreme Court hasn’t changed the fact that Ábrego García is still sitting in El Salvador’s notoriously brutal gang prison. Despite District Court Judge Paula Xinis’s laudable efforts to enforce the Supreme Court’s order for eight days now, it is pretty clear that the government has done little to nothing to try to remedy its error in mistakenly deporting him.

Ábrego García and what happens to him next pose the biggest challenge yet for the rule of law in this country. The president is testing how much the judiciary still meaningfully constrains him.

We’re in a dangerous and unprecedented era where we cannot assume that the White House will follow the law, even when ordered to do so by the legal system. As Fourth Circuit Judge and Reagan-appointee J. Harvie Wilkinson III wrote yesterday:

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies?

But (and this is a really key “but”) even if the administration defies the courts, that does not mean the Constitution suddenly evaporates.

I asked JoAnna Suriani what happens next, and she pointed to a few ways the legal system can deal with a lawless defendant (even a lawless president):

First, expect the courts to continue to make life very hard on the administration for lying, misleading, and continuing to not comply. As Judge Xinis has done, courts can use tools like expedited discovery and calling officials in for testimony to uncover facts and force honest answers in a way few other institutions can. That means government officials will have to provide answers, including during hours-long depositions or appearances in court, to pierce the veil of what is actually happening behind agencies’ closed doors.

Second, if the administration continues to defy, expect courts to hold government officials in contempt, like the proceedings District Court Judge Boasberg has begun in the Alien Enemies Act case. Courts can hold government officials in civil contempt — which is meant to force the government to comply — or criminal contempt — which is meant to punish especially willful defiance. (Judge Boasberg has started proceedings for criminal contempt, explaining that “[t]he Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it.”).

Third, if courts do pursue contempt, I would watch to see which officials Judge Xinis names as the contemnors. She can hold in contempt any official who is responsible for the disobedience, including heads of agencies. And while the Supreme Court’s presidential immunity decision last summer may insulate Trump, it won’t help his subordinates.

Fourth, expect courts to ratchet up the penalties if they do find the government or particular officials in contempt. Under both civil and criminal contempt proceedings, the court can order officials to be fined and even imprisoned. A Kentucky county clerk was imprisoned for several days after being held in civil contempt for not issuing marriage licenses to same-sex couples. Trump allies like Peter Navarro and Joe Arpaio have also faced imprisonment and fines for contempt.

Finally, watch for what the Supreme Court does with all of this. It’s a district court order whose compliance is being litigated, but that order is enforcing a 9-0 ruling by the Supreme Court. I don’t think the Chief Justice — who has shown a willingness to stand up for the judiciary when it’s been threatened — will take kindly to being ignored. When (and yes, it is almost certainly a “when”) this case goes back up to the Supreme Court, expect them to weigh in on the courts’ role in enforcing the rule of law.

These processes aren’t perfect, take time, and may seem overly-technical. But this is the courts doing what they’re supposed to do — adjudicating cases, meting out justice, and checking the executive. We don’t know how it will end, but at least the third branch is standing up and fighting for itself.

The possible next escalation? The Insurrection Act

With this lens — a long slide, not a Rubicon — let’s look ahead. In the coming weeks, many expect that the administration will invoke something called the Insurrection Act of 1807 to further ramp up their deportation agenda.

If this happens, this will be the Trump administration’s attempt to deploy the military for domestic law enforcement, either at the border or on the streets. (Which, normally, the president is strictly barred from doing by law.) In the short term, probably expect something border-focused — but also as a trial balloon for potential deployment against protestors (as Trump weighed doing in his first term).

Read more about the Insurrection Act and domestic deployment of the military here.

Here are the most important things to know:

• The Insurrection Act is intended for genuine crises and very limited circumstances.

• It’s been invoked only at rare moments in our nation’s history, like the Civil War. No president has invoked it against a state’s wishes since Lyndon Johnson did so to protect Civil Rights marches in the 1960s.¹

• Abusing the Insurrection Act for non-emergencies — like immigration enforcement — or to try to intimidate political opposition would be a major attack on the rule of law and on the apolitical integrity of the military.

In addition, this would pull service members away from their actual jobs in service of the president’s agenda, as Alex Tausanovich writes in: How to explain the threat of deploying the military on American soil.

For every member of the armed forces policing the streets of an American city, that’s one less person available to deter our overseas adversaries or to respond to real emergencies.

And even if the military had unlimited resources (it doesn’t), it is not in the business of preparing soldiers to do a hodgepodge of domestic jobs. Deploying soldiers to function in tense situations without adequate training or clear objectives is not only a disservice to the members of our armed forces, it can be genuinely dangerous.

[Read more.]

Plus, even if ostensibly for immigration enforcement — which is still, to be clear, an abuse of power! — an Insurrection Act invocation would also likely aim to intimidate you and anyone else who might use their civil liberties to oppose the White House.

All of that said, the Insurrection Act is not martial law. It does not suspend or even change the constitutional protections we all have. The military does not replace civilian law enforcement, but rather supports it. All the same laws and restrictions that apply to regular law enforcement also apply to military personnel (more so, in fact — service members also have to follow military law).

They want you to feel intimidated. They want to use the understandably disturbing threat of soldiers on the streets to scare people away from protesting. They want it to feel like a military takeover, a moment from which we cannot return, that it would be helpless to oppose. But that, like so much else, is an illusion. The Insurrection Act is an escalation, not a Rubicon.

The proper response to escalation is not to shy away. Instead, push back with redoubled clarity and commitment to the rule of law.

There’s no substitute for politics

All of the president’s connected attacks on democracy and the law point to the same end: entrenching himself in power. He aims to tilt the playing field of politics so much that the American people cannot realistically change course.

Fundamentally, this is a political project.

Trump and his allies must convince tens of thousands of judges, politicians, military leaders, lawyers, law enforcement officers, and functionaries of all types to create and maintain a tilted political playing field, indefinitely. The media, private sector, and civil society must at least tacitly accept the new reality. The White House must intimidate enough of the opposition into leaving that field, into obeying in advance. And to do all that, the president must maintain the support of the public.

In competitive authoritarian regimes, the playing field isn’t fair, but it still exists. It’s much harder for an autocrat to consolidate power with 40 percent voter support than it is with 60.

The Constitution, the law, checks and balances — all of those are formal checks on the president’s power; public opinion is the ultimate informal check. Both of them matter, just in different ways.

Donald Trump’s assaults on the formal checks may be undermining his standing in public opinion. According to The Economist, the president may now be less popular than he was at this point in his first term:

This rapid polling decline may exist even on immigration, which conventional wisdom holds is a relative strength for him. As G. Elliott Morris writes: Trump's immigration agenda is not popular.

We are now at the flip side of the “believability gap” — the pre-election tendency of many voters not to believe Trump’s authoritarian agenda. Now that those promises are coming to fruition, the American people don’t seem to like what they’re seeing.

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What else we’re tracking:

• Harvard’s stand against the Trump administration is one of the most consequential acts of courage so far. To understand why the administration’s attacks are unconstitutional, I recommend this piece by the WSJ editorial board: Donald Trump tries to run Harvard.

• Relatedly, incoming college students seem to be voting with their acceptances and alumni with their donations. Courage is contagious.

• No surprise, but after prominent law firms capitulated, Donald Trump almost immediately started demanding more. Standing up draws a hard line; bending the knee just encourages more bullying.

• The president threatened to try to fire Fed Chair Jerome Powell for not following the White House’s wishes on lowering interest rates. The courts may soon decide whether he has the power to do so. (Reminder: This road leads to economic disaster and Wall Street chaos.)

• Another escalation that may happen in coming weeks? Attacks on civil society, likely through the IRS. Ian Bassin explains: Trump’s next move to silence free speech is coming.

• Unions are mobilizing to support Kilmar Ábrego García, a SMART Union Local 100 apprentice. Collective action works.

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How you can help:

First, read this piece by David Brooks: What’s Happening Is Not Normal. America Needs an Uprising That Is Not Normal. (Gift link).

Second, share it with skeptical people in your life, the people who have never been to a protest before.

Third, think about how you can contribute to that peaceful, lawful, civic uprising. Chances are, your neighbors are peacefully taking to the streets this weekend to express their First Amendment rights.

1. The last time it was invoked at all was 33 years ago in response to the Rodney King riots in LA, at the request of the California governor.