The New York Times recently published an article Are We Losing Our Democracy? where they looked at various signs of dictatorship or autocracy and whether we had crossed that line. (I also provided the text in a Facebook post for those without NY Times access). I am going to look at each segment in turn and provide my own thoughts.
#5 - An Authoritarian Defies The Courts
"Would-be authoritarians recognize that courts can keep them
from consolidating power, and they often take steps to weaken or confront
judges."
Donald Trump has spent his whole life getting away with illegal activities. Before he ran for president he routinely waited out people who took him to court—dragging out proceedings through technically legal means until the plaintiffs simply ran out of money. Even when the occasional civil ruling went against him the fines were a drop in the bucket and didn't materially affect his bank account. He used the same strategy when faced with criminal charges after he lost the 2020 election, although this time he wasn't waiting until the other side ran out of money, but he and his lawyers delayed and delayed, making any charges moot when he was re-elected president in 2024. Even the one set of felony convictions in New York carried no penalty other than the stain on his reputation.
Trump has always viewed the law and the courts as something that applied to other people.
Article III of the Constitution states that "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." It is sometimes misunderstood that it is only the Supreme Court that has the authority to rule on issues of national significance. The Constitution disagrees. While the Supreme Court does have the last word, federal district and appeals courts have the constitutional authority to rule whether any act, law or statute is legal. And they have been doing so.
Another misunderstood item is the "presidential immunity" that the Supreme Court has bestowed. It does not give the president permission to take extralegal or unconstitutional actions. It immunizes the president from criminal prosecution for actions taken as part of his official duties and carries a strong presumption that any action is official unless clearly outside a president's duties. Courts can still rule on the constitutionality or legality of specific actions and order that such actions be stopped. The problem is that the courts have no mechanism for enforcing their rulings against the president, since the technically the executive branch, headed by the president, is the enforcement mechanism. Trump and his team have stated that their position is that the courts have no authority to interfere in his exercise of executive branch functions.
"Mr. Trump has baldly defied federal judges on several
occasions. In March, for instance, his administration ignored
a federal judge’s order to turn around airplanes that were deporting
migrants to El Salvador. More often, the Trump administration has engaged in
gamesmanship, going around orders rather than directly disobeying them. One
example: After a federal judge blocked his deployment of the Oregon National
Guard, the administration moved to deploy National
Guards from other states instead.
So far, Mr. Trump has defied no Supreme Court orders and has
pledged not to. But the justices have too often played into his strategy by
failing to stand up for lower courts."
The Supreme Court, while ruling against him on occasion, seems more willing to dig for interpretations that support Trump, or to rely on overly technical viewpoints which results in legal gridlock.
The mindset that the courts have no authority over the executive branch is what is disturbing.
Part I - Stifling Dissent and Free Speech
Part II - Persecution of Political Opponents
Part III - Bypassing the Legislature
Part IV - Using The Military For Domestic & Political Purposes
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