By Jerry Dickinson
For the Pittsburgh Current
At a campaign rally this summer in Tulsa, Oklahoma, President Trump thundered that Joe Biden “should not get rewarded with an election victory on November 3. It shouldn’t happen. It will destroy this country.” Trump’s campaign rally invoked an opposite concern. What will the second term of President Trump look like if he wins reelection in November? To answer that question, let us examine the Trump Presidency in the first four years. It tells us a lot about how our constitutional republic will fare over the next four years (and beyond) should Trump be re-elected.
Trump is arguably the first President in American history to embrace nationalistic authoritarian demagoguery. As I explain to my law students in my constitutional law course, Trump is a political and constitutional aberration. For nearly four years, Trump has appealed to the prejudices of a large swath of the American electorate to create an illusory “us versus them” dichotomy. In fact, Trump checked off all the boxes for “authoritarian behavior,” outlined by Harvard political scientists Daniel Ziblatt and Steven Levitsky, in a startling short period of time. He exhibited a weak commitment to constitutional rights and democratic norms. He’s denied the legitimacy of political opponents. Trump has tolerated or encouraged violence and displayed a willingness to curtail civil liberties. Indeed, he’s regularly threatened to repudiate the Constitution or expressed a willingness to violate it. In fact, Trump has not only exhibited these behaviors, but has attempted to wield his executive powers to act upon many of these behaviors.
Recall January 2017. Immediately after inauguration, Trump attempted to stop Mexico from bringing, in his words, “drugs…crime…[and] rapists,” by signing an Executive Order in 2017 mandating the construction of an international border wall between the U.S. and Mexico. In The Washington Post, shortly thereafter, I argued that Trump’s use of his executive powers to mandate a wall was “in service of a wrongheaded immigration policy” that ran afoul of “our country as a symbol of democracy and inclusion.” I then submitted testimony to the U.S. Senate urging its members to question “the extent to which the Secretary [of Homeland Security, John Kelly] will exercise the broad powers authorized by Congress in constructing a physical wall.” When Trump couldn’t get his border wall money from Congress, Trump shutdown the government and then declared a “frivolous and partisan” national emergency. In The Hill, I argued Trump misused his executive powers to unlawfully circumvent Congress’ power of the purse to declare an illusory immigration crisis in order to divert unauthorized military funds to build his wall. Trump said, “I can do it if I want” and that he had the “absolute right” and “absolute power” to do it. I explained in the The Atlantic that, “the courts, however, may see things otherwise.” Today, some federal courts have seen things otherwise, while sometimes the Supreme Court has not.
Shortly after the border wall Executive Order, Trump barred refugees and citizens from predominantly Muslim nations from entering the country, because he believed we needed a “total and complete shutdown of Muslims…until our [country] can figure out what the hell is going on.” Trump then attacked the legitimacy of the “so-called [federal] judge” who blocked his ban. He’s consistently repeated his attacks on the independence of the federal judiciary throughout his first term. Notably, however, the federal judiciary has held firm, ruling against an overzealous Trump Administration in record numbers.
Trump’s “us versus them” demagoguery continued well into his first-term. He imposed an unconstitutional border separation policy, aggressive arrests of immigrants in cities, and attempts to rescind the Deferred Action for Childhood Arrivals (DACA) program. These were concerted efforts to force thousands of undocumented immigrants brought to the U.S. as children out of the country, inflict cruelty on thousands of migrant children and tear immigrant families apart to appease to Trump’s base. The federal judiciary stepped up to slap down the separation policy and effort to rescind DACA, but the policies have instilled fear and anxiety in our immigrant communities. This same authoritarian demagoguery has been used to agitate white supremacy in the wake of the murder of George Floyd and the Black Lives Matter movement. Civil liberties have been curtailed with the deployment of federal agents into American cities, snatching of protesters with extraordinary use of force to quell protests, all at the expense of the First, Fourth and Fifth Amendments of the Constitution. Recently, he refused to commit to accepting the Election results or leaving the White House, further undermining political norms and expressing a willingness to violate the Constitution.
On foreign affairs and national security, Trump and his associates conduct during the campaign and shortly after inauguration raised serious national security concerns. He broke political and legal norms, often the bedrock of our democracy, by firing James Comey for investigating his involvement in Russia. This led to Robert Mueller leading an historic special counsel investigation that resulted in the Mueller Report describing multiple factual instances where Trump may have obstructed justice and possible collusion with Russia. Trump has pardoned confidantes convicted of crimes, such as Roger Stone, and attempted to shield others, including him, from further political or legal investigation. Likewise, the House was forced to take the extraordinary step of beginning impeachment proceedings against Trump when he committed an abuse of power by requesting a foreign power, Ukraine, to investigate his political opponent, Joe Biden. That led to the historic impeachment of the President in the House, but failure to remove him from office in the Senate.
The above merely scratches the surface of Trump’s authoritarian demagoguery. Here is what Trump’s first-term tells us about his second-term if he secures a victory in November.
As I wrote in The Washington Post in 2019, it is inherent in modern government for the Executive Branch to expand and enlarge its powers in small and large ways. But that reality is deeply troubling when the Executive is led by a populist demagogue. Typically, demagogues view electoral victories as an express mandate to continue to erode democratic institutions and undermine constitutional norms. The problem is that once in power, demagogues wield their expansive executive powers to lay the future ground work to slowly grind democracy to a halt with a “whimper, not a bang.” Indeed, much of what the country experienced under Trump in his first-term will likely become entrenched into his second-term agenda, except he will perceive his second victory as an express acknowledgment by the American people that authoritarianism is an acceptable alternative to democracy.
We can expect Trump to aggressively push the same “us versus them” narrative to promote heightened xenophobia. Trump will likely continue to stack his administration with personal confidantes who will protect him from legal and political investigations. The pardon power will be wielded to further inoculate his personal circle from public criticism, if not legal scrutiny. Emboldened by his Senate acquittal during the impeachment proceedings, President Trump will likely (or is currently) coordinating other abuses of power to advance personal and political gain against political opponents. He will likely use the demagoguery playbook to aggravate white supremacy in response to the Black Lives Matter movement to further normalize our nation’s racial chasm. We can expect Trump to continue to nominate a historic number of conservative federal judges and Supreme Court jurists upon vacancies, all in an effort to further entrench the expansive reach of his executive agenda. Watch to see if Trump uses a crisis — possibly the pandemic — to justify his exercise of dictatorial powers available to him during times of emergency to further curtail civil liberties and loosen constitutional constraints.
All that said, there is good news. Trump has not shredded the Constitution. The security features of the Constitution that protect against authoritarianism – such as federalism, the federal judiciary, the massive administrative state, bicameralism, Congress’s Article I lawmaking powers, and power-sharing between Congress and the States, to name a few – have been bent, but not yet broken. It is unlikely Trump will completely overthrow our democracy and plunge the country into an authoritarian regime in the next four years if reelected.
Instead, the bad news is that we may be experiencing the beginning of “democratic backsliding” that leads the country down a road where the democratic rules of the game are quietly changed through traditional legal channels, which invites the potential for autocracy. While some of Trump’s actions have been unconstitutional, many more have broken constitutional and political norms. Excessive norm-breaking in short periods of time accelerates the withering of democracies because it signals a lack of respect for the democratic rules of the game, which negatively influences Americans’ perception of and faith in democratic institutions. The fear is that further erosion of norms coupled with constant attacks on the Constitution will pave a wider path for a far more competent and calculated authoritarian demagogue to rise to power and push us over the autocratic cliff after Trump has left office.
There is hope. Article II of the Constitution presents what is the most overlooked feature of our democracy to thwart authoritarian demagogues, like Trump, from power. It’s called the staggered system of presidential elections every four years. The results on November 3 will signal whether America is committed to keeping its republic out of the hands of its first authoritarian demagogue, or whether the country is willing to continue to gamble with a dangerous experiment that may lead the nation down the road towards autocracy.
As Benjamin Franklin stated, we have “A republic, if we can keep it.”
Jerry Dickinson is a constitutional law professor at the University of Pittsburgh School of Law. He is also a former candidate for U.S. Congress