America's Democracy Is Still Resilient

Yahoo

7 days ago

The first half-year of Donald Trump's second term is not even over, and the portents of democratic erosion are already stark. The president has moved to consolidate power, purging civil servants deemed disloyal, directing federal officials to flout adverse court rulings, and ordering the Justice Department to investigate political rivals. These moves have alarmed many Americans, who see their country's democracy as fundamentally in danger.
Regrettably, their concerns aren't baseless. Even a long-established democracy can be undone—sometimes by a fairly elected leader. And yet, there is reason still to be hopeful; America is more resilient than many may fear. Unlike countries where democracy has recently unraveled, the United States displays at least six exceptional traits that are protecting it from the Trump-led assault: a robust network of advocacy groups, a powerful and independent judiciary, a constitutional system that makes executive preferences hard to entrench, a diverse and free private press, a federal system of government, and a uniquely speech-protective legal tradition. Some of these features may carry trade-offs in ordinary times, but they offer a clear advantage when democracy is under threat. If a Trump-like figure tried to purge nonloyalists, defy the courts, or use the government to punish rivals in places such as Poland, Brazil, and India, a popular resistance would be far less empowered.
To start, America's network of public-interest advocacy groups is both larger and more resilient than those in countries where democracy has declined. Around the world, many governments impose outright bans on certain foreign-funded or 'extremist' groups, and subject other organizations to convoluted registration rules. Some of these requirements may be mere nuisances in strong democracies. But when a would-be autocrat takes office, his power comes preloaded with the bureaucratic tools he needs to silence his critics.
In contrast, the strength of American civil society has a long history. The French philosopher Alexis de Tocqueville marveled at early-19th-century America's penchant for civic activity, calling liberty of association 'a necessary guarantee' against tyranny. That tradition endures: The United States stands out for its high rates of citizen engagement and dense network of nonprofit organizations. The American Civil Liberties Union, Democracy Forward, and Republicans for the Rule of Law are just a few prominent examples of institutions now challenging the administration in the courts of law and public opinion. And thanks in part to a line of Supreme Court cases dating back to at least 1886 and continuing through the Court's controversial recent decisions in Citizens United v. FEC and Burwell v. Hobby Lobby Stores, these organizations, like for-profit corporations, enjoy robust speech and associational rights.
[Adrienne LaFrance: A ticking clock on American freedom]
When these groups or other parties sue the government, U.S. courts have exceptional formal power to check a president's agenda. Some national courts elsewhere lack a Marbury v. Madison–style power to conclusively strike down unconstitutional acts of the legislature or executive. And even where that power exists, judicial review in much of Europe and Latin America is typically centralized in a single constitutional court. Aspiring autocrats therefore need only capture a single court to effectively remove judicial constraints. In some instances, they swiftly change the composition of the court by adjusting age limits or creating additional seats. Courts sometimes resist, as with the Polish Constitutional Tribunal, which, in 2015 and 2016, struck down measures the right-wing populist party had enacted to curb the court's power. But as the tribunal's judges reached the end of their nine-year terms, they were replaced by party loyalists, who then approved the president's reforms. Globally, scenarios like that aren't uncommon. Moreover, because most judges serve fixed, not life, terms, some who decide a government case may consider their later career prospects in weighing how to vote. The result: Constitutional courts are rarely far out of step with the party in power.
The United States' court system is built differently: Hundreds of lower-court federal judges with lifetime tenure have both the formal power and the political will to invalidate executive actions nationwide. As such, even judges appointed by Republican presidents, including by Trump himself, commonly rule against him. Trump-appointed judges have recently prevented deportations under the Alien Enemies Act and halted the forced leave of 2,700 USAID employees. Judges appointed by Presidents Ronald Reagan and George W. Bush have blocked Trump executive orders rescinding birthright citizenship. And all three of the Trump-appointed Supreme Court justices joined the full Court in upholding a lower court's order to facilitate the return of Kilmar Abrego Garcia from an El Salvadoran prison.
Of course, courts can only do so much to enforce their rulings—especially against a defiant president. But even when courts can't compel compliance directly, their judgments can matter. By declaring that the government has crossed a constitutional line, courts arm advocacy groups with a powerful tool: a 'fire alarm' that can give dissenters the political capital they need to push out court-defying leaders.
Another source of American institutional resilience is its aversion to big or rapid legal change. In normal times, this can stifle progress, but in unusual times, it can be a bulwark against backsliding. In some other countries, leaders have cemented their illiberal agendas through sweeping legislative changes and constitutional overhauls. Viktor Orbán and his parliamentary supermajority rewrote Hungary's constitution; Hugo Chávez began his presidency by pushing through an entirely new Venezuelan constitution; and Recep Tayyip Erdoğan transformed Turkey's parliamentary system into a presidential one through constitutional amendment. These moves fundamentally restructured their respective political orders.
But U.S. constitutional reform is exceptionally difficult. And—in part because of the Senate's filibuster rule—even ordinary legislation faces high hurdles, particularly for many of the sweeping changes Trump envisions. That's why he's thus far attempted to implement his key initiatives primarily through more than 150 executive orders, rather than via legislation or constitutional amendment. This means that many of those policies can be reversed almost as easily as they were enacted. Indeed, America's aversion to legal change allowed President Joe Biden in 2021 to swiftly undo many Trump orders, on issues such as the Muslim travel ban, protecting federal workers, and energy policy. A future president could do the same.
Next, America's media are independent and diversified. And at least since the Progressive era, they have repeatedly sounded the alarm on alleged government abuses. In many other places, silencing the press has proved too easy. In Vladimir Putin's Russia, media capture was swift: Starting in 2001, Putin's allies simply bought critical outlets and converted them to tools of state propaganda. In contrast, America's media organizations are so numerous and varied—even after years of consolidation and closures in the industry—that capturing them all would be nearly impossible.
Federalism is the separation of powers between regional and national governments. It exists in fewer than 15 percent of countries today. Perhaps not coincidentally, those countries are on average freer and more democratic than the world at large. This system has always been quite popular in America—at least with the party out of power nationally. In the U.S., state governments can facilitate, or frustrate, immigration enforcement; state courts and prosecutors retain control of the bulk of criminal justice; and citizens may retain rights under state law even when their federal rights are diminished. But in most countries, where essentially all government authority—law enforcement, taxation, and constitutional—is concentrated in one national government, leaders find it far easier to run roughshod over the institutions meant to check executive power.
[Listen: Autocracy in America]
Finally, U.S. constitutional law and courts maintain a unique commitment to free speech. In places around the world—the Philippines, India, and Germany—governments have used libel laws to suppress criticism of national leaders and other dissent. But under America's speaker-friendly defamation law, public officials face substantial hurdles in suing or prosecuting critics into silence. Sarah Palin, Devin Nunes, and Donald Trump himself each recently learned this the hard way. And while many critics of the president may despair of recent settlements by ABC News and others, the defamation laws that protect such institutions are still in place and regularly enforced.
To be clear, none of these observations either encourages complacency or diminishes the harm already caused by Trump's authoritarian moves. Many of the more vulnerable in American society—immigrants and civil servants, for instance—are especially and justifiably afraid for the future. The threats to American democracy and the rule of law are real, and they should be taken seriously.
And yet, America's 237-year-old Constitution, private organizations, and public institutions are far better positioned than their foreign counterparts under similar threat. Many of these exceptional features of American society not only make our system easier to defend—they are also a big part of why it's so worth defending.
Article originally published at The Atlantic