Trump’s authoritarian drift pushes the US towards a constitutional crisis

Donald Trump declared during his campaign that if he won the election, he would be a dictator on day one. Since his triumphant return to the White House, the U.S. president has focused on straining the executive branch, encroaching on legislative powers with a flood of executive orders, and defying judicial rulings. His authoritarian drift threatens to trigger a constitutional crisis and jeopardizes the system of checks and balances that has defined American democracy for nearly 250 years. The clash between branches of government has intensified over the past week, after the president invoked an 18th-century law, applicable in times of war, to deport immigrants without legal guarantees — just as he had promised to do.

Federal Judge James E. Boasberg ordered a halt to the fast-track deportation of hundreds of Venezuelans to El Salvador, where they were imprisoned upon arrival by the Nayib Bukele government. The transfers continued, and Trump reacted by calling for the judge to be impeached and removed by Congress. In one of his all-caps social media posts, he lashed out at Boasberg: “This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President,” he began his tirade, suggesting that his election victory made him above the law and judges.

Trump’s attack prompted a response from U.S. Supreme Court Chief Justice John Roberts, who stood up to Trump in defense of judicial independence. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose,” Roberts said in an extraordinary statement. Meanwhile, Elon Musk — the world’s richest man — was using his wealth to make donations to members of Congress who support impeaching judges.

All week, Trump administration lawyers have been playing cat-and-mouse with Judge Boasberg, who is trying to determine whether his order was disobeyed. A Rhode Island judge also said last month that the government continued to withhold federal funds in violation of his court order.

The clash with the judiciary over deportations is the latest episode in a two-month showdown in which Trump has issued a relentless stream of executive orders of dubious legality seeking to end birthright citizenship, freeze congressionally approved funds, disregard existing laws, fire inspectors general and independent agency officials without adhering to legal requirements, purge people for ideological reasons, bypass labor protections for public officials, dismantle congressionally established agencies, harass businesses and law firms, engage in ongoing conflicts of interest, and push the limits of his power.

Georgetown University law professor David Super told Reuters that Trump “clearly is making a very aggressive move to expand presidential powers at the expense of the other two branches of government” referring to the legislative and judicial branches.

“It is, of course, too early to offer definitive verdicts, but the first few weeks of the Trump administration may well constitute the most severe attack on the rule of law in the United States since confederate armed forces began lobbing artillery shells into Fort Sumter in 1861,” wrote Alex Keyssar, professor of history and social policy at the Harvard Kennedy School. “If we are not yet in a constitutional crisis (one in which there are no constitutional rules to guide the resolution to a conflict), we’re close enough to feel its approaching headwinds.”

“When people elected to uphold the rule of law and to follow the Constitution openly defy the plain meaning of laws, then yes, we’re in a constitutional crisis,” said Jessica Silbey, a law professor at Boston University School of Law and an expert on constitutional law, in comments to the university magazine. “Donald Trump is rearranging the constitutional structure of government through mechanisms that do not provide for any accountability or transparency, which defies our democratic norms and commitments. He’s openly resisting the plain meaning of laws that we have accepted for a long time.”

More than 1,000 law scholars from across the country signed a letter, coordinated by Kent Greenfield, professor and Dean’s Distinguished Scholar at Boston College Law School, denouncing President Trump’s numerous unlawful executive orders and actions. “We believe we are in a constitutional crisis. The President has signed a number of executive orders that are beyond his constitutional or statutory authority,” the letter read.

“The government and laws of the United States are not subject to presidential whim. On the contrary, the president is bound to ‘take care that the laws be faithfully executed.’ And he is bound by oath to ‘faithfully execute’ the office of the president and ‘preserve, protect and defend the Constitution of the United States.’ The undersigned have a variety of views on the underlying policies at issue. But we are united in our view that the president has acted unlawfully and unconstitutionally,” it added.

“The illegality of these actions, even when the illegality has been adjudged in federal courts, does not seem to be deterring the President’s actions. Instead, the President and his administration are openly flirting with disobeying judicial rulings against him,” it continued. “We are saddened by the fact that we have to explain to the President this fundamental democratic principle, but we do: a president has the obligation to obey the Constitution as well as court orders enjoining his illegal and unconstitutional efforts. The law is not whatever Mr. Trump says it is. He is not king.”

Defying judges

The Trump administration has argued that it is the judiciary, not the president, that is overstepping its bounds. More than 100 of the government’s measures are being challenged in the courts, and judges have placed injunctions on more than a dozen executive branch decisions.

Trump recently gave a glimpse of his philosophy when he quoted Napoleon on his social media account: “He who saves his Country does not violate any Law,” he wrote. Vice President J. D. Vance posted that “judges aren’t allowed to control the executive’s legitimate power.” Stephen Miller, Trump’s deputy chief of staff for political affairs, also lashed out against “radical rogue judges,” claiming they “have no authority to administer the executive branch.” “Or to nullify the results of a national election. Either have democracy, or not,” he added in his message on X.

However, when Trump was asked last week in an interview on Fox News if he would defy a court order, he replied, “No, you can’t do that.” ““However, we have bad judges. We have very bad judges. These are judges that shouldn’t be allowed. I think at a certain point, you have to look at what do you do when you have a rogue judge,” he said. The problem is that if a president were to openly decide to defy a court ruling, there’s not much judges could do.

In theory, judges can hold federal agency officials or their lawyers in contempt and fine them for defying a magistrate’s orders. They can impose financial penalties on federal agencies for noncompliance and, in extreme cases, imprison officials for contempt. In practice, however, the Marshals Service — the enforcement arm of the federal judiciary — is overseen by the Justice Department, which answers to the administration. It is led by Attorney General Pam Bondi, a staunch Trump loyalist.

Also in theory, a president could be impeached for openly defying a court ruling, but that decision rests with Congress, now dominated by Republicans and firmly under Trump’s control — which also him to expands his powers. In criminal matters, the Supreme Court has ruled that presidents enjoy broad immunity for acts taken while in office.

On Thursday, Trump urged the Supreme Court to restrict federal judges' authority to issue nationwide injunctions blocking his administration’s actions. “STOP NATIONWIDE INJUNCTIONS NOW, BEFORE IT IS TOO LATE,” Trump wrote in a social media post. “If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!”

Federal judges who have reviewed Trump’s abuses of power and temporarily suspended some of his actions include appointees of presidents Bill Clinton, George W. Bush, Barack Obama, Joe Biden, Ronald Reagan, and even Trump himself. Judge Boasberg was confirmed by the Senate with a unanimous 96-0 vote. Although appointed to his current position by Obama, he had previously been appointed by George W. Bush.

Chief Justice Roberts had previously defended the independence and professionalism of all federal judges in 2018, regardless of who appointed them, after Trump attacked a decision on his asylum policy made by what he referred to as “an Obama judge.” “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for,” he wrote in a statement.

The Supreme Court has yet to rule on the merits of any Trump measures suspended by lower courts. So far, it has dealt Trump a setback in two cases by refusing to provisionally overturn those rulings.

The Supreme Court consists of six conservative justices and three liberal justices. Of the conservatives, three were appointed by Trump, two by George W. Bush, and one by George H.W. Bush. Of the liberals, two were appointed by Barack Obama and one by Joe Biden. With justices serving lifetime terms, the conservative majority is virtually guaranteed to endure for a long time — potentially decades.

Trump and his deputy, Elon Musk, are also pushing the limits of executive power by applying the “unitary executive” theory — a conservative doctrine that argues the president has absolute authority, over and above the restrictions imposed by Congress.

Legal scholar John Yoo, a professor at the University of California School of Law and a former official in the George W. Bush administration, is one of the theory’s leading proponents. He recently defended it on NPR: “The Constitution puts the executive power of the federal government into one person — the president. Now, that can be risky or dangerous, of course, but they thought that was outweighed by the virtues of having a single person who could act quickly, could act with speed, could act with decision and capability. So the famous phrase that Hamilton used is good government is defined by energy in the executive. And to have that energy, you need to have the power in one person."

Yoo’s thesis is that Congress excessively limited presidential power in response to the Watergate scandal and that Trump is trying to regain “unitary” power. Russell T. Vought, author of the chapter on executive power in Project 2025, a conservative blueprint for government, and now a senior White House official, has embraced this theory. “The great challenge confronting a conservative President is the existential need for aggressive use of the vast powers of the executive branch to return power— including power currently held by the executive branch — to the American people," he wrote.

Trump’s drive to expand his powers has become a defining feature of his second term, and he doesn’t take kindly to criticism. In a speech last week at the Department of Justice, he went so far as to argue that the media is illegal for criticizing him.

The drive to expand his powers has become a defining feature of Trump’s second term. And he doesn’t take kindly to criticism. In a speech last week at the Department of Justice, he went so far as to argue that the media is illegal for criticizing him. “I believe that CNN and MSDNC [referring to MSNBC], who literally write 97.6% bad about me, are political arms of the Democrat Party. And in my opinion, they’re really corrupt, and they’re illegal. What they do is illegal.”

Retired Supreme Court Justice Stephen Breyer declined to comment publicly on whether there is a constitutional crisis. “No one really knows. People have different views on that,” he said in a CNN interview last week.

“The one thing we can say for certain is that it’s not an on-off switch. It’s not a binary. It’s a position on a spectrum,” James Sample, a constitutional law expert at Hofstra University, told ABC. “What we are experiencing is not a blitzkrieg against [political] adversaries, but rather a blitzkrieg on the part of the executive against the rule of law itself. That is a defining characteristic of a crisis for the rule of law.”

Steven Levitsky, a Harvard political scientist and author of How Democracies Die, compared Trump’s actions last week to those of other authoritarian leaders, such as Hugo Chávez (Venezuela), Viktor Orbán (Hungary), and Recep Tayyip Erdoğan (Turkey).

“I’ve never seen anything like it,” he told the New York Times. “We look at these comparative cases in the 21st century, like Hungary and Poland and Turkey. And in a lot of respects, this is worse. These first two months have been much more aggressively authoritarian than almost any other comparable case I know of democratic backsliding,” he continued. “The zeal with which these guys are engaging in increasingly open, authoritarian behavior is unlike almost anything I’ve seen. Erdoğan, Chávez, Orbán — they hid it."

Sign up for our weekly newsletter to get more English-language news coverage from EL PAÍS USA Edition