Lawless President— Lawless Regime... What About The Supreme Court?

Yesterday, Bernie e-mailed his supporters that thanking Musk isn’t usually on his dance card but Musk “has done an exceptional job of demonstrating a point that we have made for years— and that is the fact we live in an oligarchic society in which billionaires dominate not only our politics and the information we consume, but our government and economic lives as well. That has never been more clear than it is today.”

He reiterated that, as Musk “illegally and unconstitutionally dismantles government agencies, I thought it was an appropriate time to ask the question that the media and most politicians don't seem to be asking: What do he and other multi-billionaires really want? What is their endgame? In my opinion, what Musk and those around him are aggressively striving for is not novel, it is not complicated and it is not new. It is what ruling classes throughout history have always wanted and have believed is theirs by right: more power, more control, more wealth. And they don’t want ordinary people and democracy getting in their way. Elon Musk and his fellow oligarchs believe government and laws are simply an impediment to their interests and what they are entitled to.”

In pre-revolutionary America, the ruling class governed through the “divine right of kings,” the belief that the King of England was an agent of God, not to be questioned. In modern times, the oligarchs believe that as the masters of technology and as "high-IQ individuals,” it is their absolute right to rule. In other words, they are our modern-day kings.

…They are waging a war on the working class of this country, and it is a war they are intent on winning.

I am not going to kid you— the problems this country faces right now are serious and they are not easy to solve. The economy is rigged, our campaign finance system is corrupt and we are struggling to control climate change— among other issues.

…Their nightmare is that we will not allow ourselves to be divided up by race, religion, sexual orientation or country of origin and will, together, have the courage to take them on.

Will it be easy? Of course not.

The ruling class of this country will constantly remind you that they have all the power. They control the government, they own the media. “You want to take us on? Good luck,” they will say. “There's nothing you can do about it.”

But our job today is to not forget the great struggles and sacrifices that millions of people have waged over the centuries to create a more democratic, just and humane society:

*Overthrowing the King of England to create a new nation and self-rule. Impossible.

*Establishing universal suffrage. Impossible.

*Ending slavery and segregation. Impossible.

*Granting workers the right to form unions and ending child labor. Impossible.

*Giving women control over their own bodies. Impossible.

*Passing legislation to establish Social Security, Medicare, Medicaid, a minimum wage, clean air and water standards. Impossible.

In these difficult times despair is not an option. We’ve got to fight back in every way we can.

Steven Levitsky warned that if you’re looking for Trump to suddenly turn into an American version of Hitler, Stalin, Xi or Putin, it probably won’t happen. MAGA has a different authoritarian road it’s going down. “A full-scale dictatorship in which elections are meaningless and regime opponents are locked up, exiled, or killed remains highly unlikely in America. But that doesn’t mean the country won’t experience authoritarianism in some form. Rather than fascism or single-party dictatorship, the United States is sliding toward a more 21st-century model of autocracy: competitive authoritarianism— a system in which parties compete in elections but incumbent abuse of power systematically tilts the playing field against the opposition. In his first weeks back in office, Donald Trump has already moved strongly in this direction. He is attempting to purge the civil service and directing politicized investigations against rivals. He has pardoned violent paramilitary supporters and is seeking to unilaterally seize control over spending from Congress. This is a coordinated effort to dig in, cement power, and weaken rivals.” Elderly establishment clowns like Schumer can’t wrap their heads around this and are making it much tougher to fight while there’s still time… if there’s still time.

Unlike in a full-scale dictatorship, in competitive-authoritarian regimes, opposition forces are legal and above-ground, and they often seriously vie for power. Elections may be fiercely contested. But incumbents deploy the machinery of government to punish, harass, co-opt, or sideline their opponents— disadvantaging them in every contest, and, in so doing, entrenching themselves in power. This is what happened in Venezuela under Hugo Chávez and in contemporary El Salvador, Hungary, India, Tunisia, and Turkey.

Crucially, this abuse of the state’s power does not require upending the Constitution. Competitive autocracies usually begin by capturing the referees: replacing professional civil servants and policy specialists with loyalists in key public agencies, particularly those that investigate or prosecute wrongdoing, adjudicate disputes, or regulate economic life. Elected autocrats such as Chávez, Vladimir Putin, Recep Tayyip Erdoğan, Viktor Orbán, Narendra Modi, and Nayib Bukele all purged public prosecutors’ offices, intelligence agencies, tax authorities, electoral authorities, media regulatory bodies, courts, and other state institutions and packed them with loyalists. Trump is not hiding his efforts to do the same. He has thus far fired (or declared his intention to fire, leading to their resignation) the FBI director, the IRS commissioner, EEOC commissioners, the National Labor Relations Board chair and other nominally independent officials; reissued a renamed Schedule F, which strips firing protections from huge swaths of the civil service; expanded hiring authorities that make it easier to fill public positions with allies; purged more than a dozen inspectors general in apparent violation of the law; and even ordered civil servants to inform on one another. [Maybe the first thing Levitsky should have mentioned was stuffing the Supreme Court with corrupt partisan hacks.]

Once state agencies are packed with loyalists, they may be deployed to investigate and prosecute rivals and critics, including politicians, media companies, editors, journalists, influential CEOs, and administrators of elite universities. In the United States, this may be done via the Justice Department and the FBI, the IRS, congressional investigations, and other public agencies responsible for regulatory oversight and compliance. It may also be done via defamation or other private lawsuits.

The administration doesn’t have to jail its opponents to bully, harm, and ultimately intimidate them into submission. Indeed, because U.S. courts remain independent, few targets of selective prosecution are likely to be convicted and imprisoned. But mere investigations are a form of harassment. Targets of selective investigation or prosecution will be forced to devote considerable time, energy, and resources to defending themselves; they will spend their savings on lawyers; their lives will be disrupted; their professional careers will be sidetracked and their reputations damaged. At minimum, they and their families will suffer months and perhaps years of anxiety and sleepless nights.

Plus, the administration need not target all critics. A few high-profile attacks, such as a case against Liz Cheney, a prominent media outlet, or selective regulatory retaliation against a major company, may serve as an effective deterrent against future opposition.

Competitive-authoritarian governments further subvert democracy by shielding those who engage in criminal or antidemocratic behavior through captured referees and other impunity mechanisms. Trump’s decision to pardon violent January 6 insurrectionists and purge prosecutors who were involved in those cases, for example, sends a strong signal that violent or antidemocratic actors will be protected under the new administration (indeed, that’s how many pardon recipients are interpreting the pardons). Likewise, a loyalist Justice Department and FBI could disregard acts of political violence such as attacks on (or threats against) campaign workers, election officials, journalists, politicians, activists, protesters, or voters.

They could also decline to investigate or prosecute officials who work to manipulate or even steal elections. This may appear far-fetched, but it is precisely what enabled the consolidation of authoritarian rule in the Jim Crow South. Protected by local (and often federal) authorities in the aftermath of Reconstruction, white-supremacist groups used violent terror and election fraud to consolidate power and disenfranchise African Americans across the region.

Finally, state institutions may be used to co-opt business, media, and other influential societal actors. When regulatory bodies and other public agencies are politicized, government officials can use decisions regarding things such as mergers and acquisitions, licenses, waivers, government contracts, and tax-exempt status to reward or punish parties depending on their political alignment. Business leaders, media companies, universities, foundations, and other organizations have a lot at stake when government officials make decisions on tariff waivers, regulatory enforcement, tax-exempt status, and government contracts and concessions. If they believe that those decisions are made on political, rather than technical, grounds, many of them will modify their behavior accordingly.

Thus, if business leaders come to the conclusion that funding opposition candidates or independent media is financially risky, or that remaining silent rather than criticizing the administration is more profitable, they will change their behavior. Several of the country’s wealthiest individuals and companies, including Jeff Bezos, Tim Cook, Sam Altman, Mark Zuckerberg and Disney, already appear to be adjusting in that way.

Democracy requires robust opposition. Opposition parties and civil-society groups cannot function without money and without a large and replenishable pool of talented politicians, lawyers, journalists, and entrepreneurs.

But using the state’s power against critics will likely deter many of them, depleting that pool. Talented politicians may decide to retire early rather than face an unfounded investigation. Donors may decide that the risk of contributing to Democratic candidates or funding “controversial” civil-rights or pro-democracy organizations is not worth it. Media outlets may downsize their investigatory teams, let go of their most aggressive editors and reporters, and decline to renew their most outspoken columnists. Up-and-coming journalists may steer clear of politics, opting instead to write about sports or culture. And university leaders may crack down on campus protest, remove or isolate activist professors, and decline to speak out on issues of national importance.

Civil society therefore faces a crucial collective-action problem. Individual politicians, CEOs, media owners, and university presidents act rationally and do what seems best for their organizations. They work to protect their shareholders’ interests and stave off debilitating investigations or lawsuits. But such isolated acts of self-preservation have collective costs; as individual players retreat to the sidelines, the opposition weakens.

Some of these costs will be invisible. The public can observe when players sideline themselves: congressional retirements, university presidents’ resignations, the ceasing of campaign contributions, the softening of editorial lines. But we can’t see the opposition that never materializes—the potential critics, activists, and leaders who are deterred from getting in the game. How many young lawyers will decide to remain at a law firm instead of running for office? How many talented young writers will steer clear of journalism? How many potential whistleblowers will decide not to speak out? How many citizens will decide not to sign that public letter, join that protest, or make that campaign contribution?

Democracy is not yet lost. The Trump administration will be politically vulnerable. Unlike successful elected authoritarians such as Nayib Bukele in El Salvador, Hugo Chávez in Venezuela, and Vladimir Putin in Russia, Trump lacks broad popular support. His approval rating has never surpassed 50 percent, and incompetence, overreach, and unpopular policies will almost certainly dampen public support for the new administration. An autocratic president with an approval rating below 50 percent is still dangerous, but far less so than one with 80 percent support. The new administration’s political weakness will open up opportunities for opposition in the courtroom, on the streets, and at the ballot box.

Still, the opposition can win only if it stays in the game. Worn down by defeat, and fearing harassment and lost opportunities, many civic leaders and activists will be tempted to pull back into their private lives. It’s already happening. But a retreat to the sidelines could be fatal for democracy. When fear, exhaustion, or resignation eclipses our commitment to democracy, competitive authoritarianism succeeds.

It doesn’t sound all that hopeful— although yesterday the NY Times finally got around to suggesting we may be in a constitutional crisis which Adam Liptak defined as “the product of presidential defiance of laws and judicial rulings. It is not binary: It is a slope, not a switch. It can be cumulative, and once one starts, it can get much worse… [T]he Supreme Court’s six-member conservative majority may be receptive to Trump’s arguments. Its decision in July granting him substantial immunity from prosecution embraced an expansive vision of the presidency that can only have emboldened him. Members of that majority are, for instance, likely to embrace the president’s position that he is free to fire leaders of independent agencies... Trump has already disregarded one Supreme Court decision, its ruling last month upholding a federal law, passed by lopsided bipartisan majorities, requiring TikTok to be sold or banned. Trump instead ordered the Justice Department not to enforce the law for 75 days, citing as authority for the move his ‘unique constitutional responsibility for the national security of the United States.’… Even before this weekend, Vance has said that Trump should ignore the Supreme Court. In a 2021 interview, he said Trump should ‘fire every single midlevel bureaucrat, every civil servant in the administrative state’ and ‘replace them with our people.’ He added: ‘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.’”

U.S. District Judge John McConnell has ordered Trump to immediately restore frozen funding that he ordered him to do last month, “including to the National Institutes of Health and to fulfill the Biden-era Inflation Reduction Act and Infrastructure Improvement and Jobs Act. ‘The broad categorical and sweeping freeze of federal funds is, as the Court found, likely unconstitutional and has caused and continues to cause irreparable harm to a vast portion of this country,” McConnell ruled. ‘These pauses in funding violate the plain text of the [order].’”

The order follows a claim by a group of Democratic state attorneys general that the Trump administration had continued to block spending that McConnell’s order was intended to release. The Trump administration responded that it is attempting to root out fraud in the programs, but the judge said that reasoning is not sufficient to justify defying the order.

“The freezes in effect now were a result of the broad categorical order, not a specific finding of possible fraud,” he said.

McConnell hinted at the possibility of contempt for officials who he deems as continuing to defy his order, citing a 1975 court ruling that noted “Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.”