How to Tyranny-Proof America's Future

Yahoo

2 days ago

COMPARED TO HIS PREDECESSORS, Donald Trump has moved faster and on a much larger scale to target individuals, categories of people, and organizations for reasons personal (think 'revenge tour') and political (think mass deportations, attacks on law firms). If a future Congress ever wants to prevent a repeat of these kinds of abuses, there are many specific reforms that should be enacted.
But it's not enough to focus narrowly on Trump's actions. The presidents who came before him set their own precedents and examples—often affirmed by Congress and the courts—that have also contributed to the present breakdown of our constitutional order. If Congress and the courts had not ceded so much raw, coercive power to the presidency, we might not now be facing a chief executive busily subverting the few remaining meaningful constitutional safeguards separating a republic from a tyranny.
To think more clearly about how Congress must act to provide independence to both law enforcement and the judiciary, let's start with a turbo-speed history lesson.
In my new book, The Triumph of Fear, I catalogue a sixty-year period from William McKinley through Dwight Eisenhower in which, with perhaps the sole exception of Warren Harding, every man elected to the presidency misused the power handed to him to spy on and even politically persecute his political enemies—real or imagined.
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Following the exposure in the 1970s of many unconstitutional government-run surveillance and subversion programs, Congress passed multiple reforms to try to prevent future presidents from engaging in such abusive conduct. Unfortunately, every one of those 1970s-era reforms—be it the Foreign Intelligence Surveillance Act (FISA), the Inspector General Act, or the creation of the House and Senate intelligence committees—has failed to prevent presidential misconduct. The underlying assumption when they were adopted—that future presidents would find it difficult to work around or subvert them—was false.
Trump's attacks on the federal judiciary stretch back to his first term in office and have only increased during the first months of his second term. His invocation of the two-century-old Alien Enemies Act (AEA) for lightning-fast, due process–free mass deportation operations is best thought of as a 'proof of concept' of his playbook for authoritarian consolidation in the presidency at the expense of Congress, the courts, and ultimately the Constitution itself.
Trump's ongoing defiance of court orders in the AEA cases is reinforced by the willingness—if not eagerness—of federal law enforcement agents of Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI), the FBI, and even federally deputized state and local law enforcement officers to carry out his deportation orders despite multiple federal court rulings to the contrary.
Which brings to mind one area where Trump hasn't yet abused his power—but he might.
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Under current law, all federal law enforcement officers fall under the control of the executive branch, including the United States Marshals Service, which is charged by statute with protecting both court facilities and staff (especially judges). But what if Trump's attorney general, Pam Bondi, elected to declare that statute unconstitutional? What if Bondi asserted that Trump could, at his discretion, order the marshals to leave their judicial-protection duties and instead join ICE, HSI, FBI, and other law enforcement on mass deportation operations?
An Office of Legal Counsel opinion, written during the Jimmy Carter administration and updated during the Obama administration, asserts that, 'While there is no general privilege in the Executive to disregard laws that it deems inconsistent with the Constitution, in rare cases the Executive's duty to the constitutional system may require action in defiance of a statute. In such a case, the Executive's refusal to defend and enforce an unconstitutional statute is authorized and lawful.'
That OLC opinion, accepted by every one of Trump's predecessors over the last forty-five years, could provide Trump and Bondi with at least a fig leaf of bipartisan political and legal cover to reduce or eliminate marshals protection for judges Trump deems 'radical' or otherwise objectionable.
This threat has prompted some members of Congress to propose a solution designed to provide protection for judges that Trump or any of his successors could never remove.
Shortly before the Memorial Day holiday, Senators Cory Booker (D-N.J.), Chuck Schumer (D-N.Y.), Alex Padilla (D-Cal.), and Adam Schiff (D-Cal.), along with Representatives Eric Swalwell (D-Cal.), Jamie Raskin (D-Md.), and Hank Johnson (D-Ga.), introduced the MARSHALS Act, legislation that would move the Marshals Service out of the executive branch and place it under the control of the federal judiciary.
It's a great idea that has zero chance of becoming law this session—but it demonstrates that at least some Senate and House members are willing to remove some of the armed, coercive law enforcement power currently under presidential control. That alone is a mental and political breakthrough that all those loyal to the constitutional republic should embrace.
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THE MARSHALS ACT IS JUST ONE example of the kind of legislative action that needs to be taken to prevent future presidential domestic political repression. Many other changes are needed as well; law professors, political activists, and commentators on constitutional matters are all likely to have their own lists of needful reforms—most of which will boil down to taking away the tools that make repression possible.
My preference, as someone who has closely studied the abuses arising from presidential control of law enforcement, would be for a constitutional amendment that would move all but two federal law enforcement organizations from the executive branch to the control of the federal judiciary. The Secret Service (which protects the president and vice president) and the Federal Protective Service (which secures most federal buildings) would remain in the executive branch, but all other federal law enforcement would come under the control of the federal judiciary . . . and thus outside the control of an inherently political branch of government.
Such a constitutional amendment should also modify current law to ensure that no president can call up a state's National Guard units for 'civil disturbance,' immigration enforcement, or any other domestic mission without the express written consent of the state's governor. This would safeguard against a future president calling up National Guard troops to shoot political protesters, as Trump wanted to do in the summer of 2020 during the Black Lives Matter protests.
Such an amendment would go far to restore and preserve our constitutional republic. But it would unquestionably be a very heavy political lift, to put it mildly. In the meantime, advocates should start laying the groundwork—doing the necessary research and drafting legislative language—for congressional action on other reforms, such as strengthening search and seizure protections, setting national training standards for all law enforcement officers, and creating a meaningful private right of action for police misconduct.
Absent a dramatic (perhaps tragic) major political event, it's all but impossible to imagine any of these proposals becoming law while Trump is still in office. But introducing them now is critical for building support for them so that once he's out of office and a new Congress committed to preserving the constitutional order is in place, it can act quickly, while the memory of Trumpian abuses is fresh, to prevent a recurrence. We owe that to ourselves and to generations to come.
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