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The courts, Congress, and the military are unlikely to resist the Trump administration’s tidal wave of illegality.

President Donald Trump, in his second term, is rapidly moving the United
States away from liberal democracy and toward authoritarianism capped by unrestricted one-man rule.

He has repeatedly and flagrantly disregarded the law. The disregard has included the gutting and disestablishment of agencies whose existence and budgets are based on acts of Congress. It has included mass firings and targeted dismissals of officials while ignoring legal requirements to show cause and ensure due process.

The law enforcement powers of the government have been blatantly
weaponized, politicized, and deployed against anyone Trump considers a political or personal adversary, even in the absence of a prosecutable
crime. Despite the president’s duty under Article II of the Constitution to “take care that the laws be faithfully executed,” Trump has refused to
enforce regulatory laws that he does not happen to like.

He has abridged basic freedoms enshrined in the First Amendment. Legal non- citizen residents have been seized on the street and jailed for weeks
merely for expressing an opinion. The administration is actively
considering a broader policy of revoking visas and deporting foreign
students who express their opinions in campus protests.

With some undocumented immigrants being thrown into a notorious prison in
El Salvador, Trump has talked openly about extending similar treatment to
US citizens. US citizens have already been swept up, whether inadvertently
or otherwise, in the administration’s mass deportations.


In a further affront to freedom of speech, Trump has ordered criminal investigations of former officials because they said something publicly
that disagreed with Trump’s assertions, such as his lie about the 2020 election. He has attacked freedom of the press, such as by punishing a wire service over a mere choice of words.

He has eliminated most checks within the executive branch against arbitrary
and illegal behavior. This has included the wholesale firing of inspectors general and sidelining the Office of Legal Counsel in the Department of Justice.

He has extended his power grab to institutions that are not even part of
the executive branch. He has gutted federally chartered research
institutions and subjected them to crippling takeovers. An assault on
private universities is intended to bend them into submission regarding
their curricula, hiring, and admissions policies.

Trump is increasingly brazen about the illegality. He even declines to say
that he would uphold the US Constitution despite having twice sworn an oath
to preserve, protect, and defend it.


The nation is already far enough down the road to dictatorship that it is
not too soon to think about worst-case scenarios of the sort Americans have seldom needed to think about happening in their own country. Such thinking
is required to understand what may or may not be effective in stopping the drive away from liberal democracy. Anticipating the limitations of
guardrails that may be looked at in the future may help illuminate what is needed in the present.
The Courts and Congress Are Not Stopping Him

Ordinarily, the courts would be looked to as the principal check on illegal executive actions, and amid Trump’s torrent of illegality, courts
frequently have ordered him to stop. But Trump has made his disrespect for judicial decisions clear. The administration’s response to court orders
often has taken the form of “legalistic noncompliance,” which involves the
use of specious arguments to conceal widespread defiance of court
judgments.

In some cases, judges have found outright violations of court orders.
Trump’s underlings have explicitly expressed defiance. Vice President JD
Vance has declared that “judges aren’t allowed to control the executive’s legitimate power,” ignoring the courts’ role under the Constitution in
deciding what is legitimate and what is not. Trump’s border czar, Tom
Homan, has said, “I don’t care what the judges think.”

The US Marshals Service has the primary responsibility for enforcing court orders, but it is part of the Department of Justice, reporting to the
attorney general and ultimately to the president. And Attorney General Pam Bondi is unhesitatingly weaponizing the Department of Justice on behalf of Trump’s political objectives.

Judges can issue contempt citations for failure to obey court orders.
However, enforcement of these citations is problematic due to an
uncooperative Justice Department. A court could issue a civil contempt
citation and possibly appoint an executor to enforce it if the marshals
refuse. Moreover, Trump can use a pardon to negate any criminal penalty
imposed by a federal court.


One reason is that any talk of military involvement in political matters entails a cure that may be at least as bad as the disease. An apolitical military has been a precious and critical ingredient in the stability of American democracy. Any military involvement in determining the civilian leadership and what that leadership can do, no matter how noble the
objectives of the officers involved, would entail losing political
virginity, never to be regained.

Second, regardless of the military’s capability to use force, intentions
are a different matter. As much of the preceding analysis has shown, US military leaders have strong and understandable reasons to avoid any
appearance of political involvement, except possibly in the most extreme scenarios.

Third, although the military might become a savior of sorts in an extreme situation (such as if Trump tried to stay in power past his term), one
needs to consider how much damage Trump already will have inflicted on the nation by then, including damage to the norms of liberal democracy.
Resistance to creeping authoritarianism is not something that can wait
until some future ripe moment.

Finally, whatever anyone, including the military, may do under these circumstances is not done in a vacuum. Seeing others resist, or at least
try to resist, despite having meager capabilities to do so, is one of the
most significant determinants of whether any one actor chooses to act. The Bangladeshi military is unlikely to have taken action against Sheikh Hasina were it not for the massive street demonstrations. What the US military ultimately does, and whether American liberal democracy will ultimately survive, will depend on the risks that many other institutions and
individuals, from law firms and universities to members of Congress and ordinary citizens, take in trying to stop the lurch toward dictatorship.b

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