What have these first harried months of this second Trump presidency brought? How do we process the mass dismantling we have all just witnessed? We are trying to wrap our collective heads around what 100 days of lawlessness really means, for us, for the country, for the world.
But the mistake we make is that we in the press want to tell the unified legal story of the first 100 days of Donald Trump through the lens of reasoned objectivity. That is understandable. Both journalism and law draw from long traditions of reason and objectivity.
The problem is, this tendency results in the making of broad claims about how shambolic and dysfunctional Trump’s legal moves have been—executive orders issued and immediately challenged; unlawful actions halted instantly by judges across the ideological and political spectrum; admissions of “administrative error” in the mass renditioning of alleged gang members to a prison in El Salvador. Mistakes and screwups.
Every legal action is reckless, and many, if not most, have been met with equal and opposite legal reactions.
But that is only half the story. This Trump administration is staffed by hollow-eyed cultists and loyalists who neither act as a brake on his most unconstitutional efforts nor possess the capacity to be shamed by the judicial system. They flood the zone, and even if they win only 10 percent of their stupid gambits, those gambits still create material harm for real people. Most worrisome, even when they effectuate their unconstitutional wishes stupidly and clumsily, they don’t actually care enough to try any harder to get it right. Which means they may be on the precipice—if they have not already gone over the cliffside, and this is the thing we are holding our breath tracking—of fucking around and finding out whether there are still limits on what can be done. Whether there are still courts and law to stop them.
Taken together, the two strands—they are terrible at this, and also they don’t care—mean, as we have been urging here at Slate for months, that “Is it a constitutional crisis yet?” is the wrong question. Asking whether we are in a constitutional crisis yet implies that there is some objective way to measure the answer, and that when we tip over the edge, something magnificent will happen. But there is both no objective way to measure it, which is also why nothing will happen in response, and no automatic external fix that will kick in. There’s just no constitutional sprinkler system—even if we could all come to agree that a constitutional crisis has occurred. Yes, it’s a constitutional crisis. Now what?
With all due respect to the New York Times, the operative question is not “How lawless is the Trump presidency?” (As most of the Times’ experts conclude, we are daily witnessing lawlessness coming from a White House that sees lawlessness as an end in itself.) Instead, the question must be: Who actually cares about the demise of the rule of law, and what are they doing about it?
The bad news first? A White House that sees these polling numbers (they’re bad) about mass disappearances and the death of due process and shrugs is a very, very dangerous thing. That the administration’s cynical belief—that Americans wouldn’t care enough about a vicious lawless deportation plan, even as American children with cancer were swept up in the dragnet—was a miscalculation is now abundantly clear. The worry is that the reason the White House is still doubling down on the deportation porn, the arrest of a judge, the truly sociopathic new executive orders, and the open violation of a Supreme Court order is because it doesn’t actually need to care about the fate of the GOP in the midterms. The notion that the next election won’t matter, and that the election of 2028 will be the end of the Constitution, isn’t just MAGA bluster. It’s part of a long-standing GOP plan to ensure that free and fair elections cannot be deployed to solve America’s current rule-of-law problem. That’s why the SAVE Act, the North Carolina Supreme Court election, and Elon Musk’s new extracurriculars around election buying should give us all pause. The same legal team strangling due process and habeas corpus is hard at work strangling the vote, and it is working hand in glove to make MAGA the forever party. The administration doesn’t care about polls and midterms because it doesn’t believe it has to.
The other, more ambiguous piece of bad news is that nobody is in charge of the lawlessness emanating from the White House these days. Trump is emboldened to speak Mad King rhetoric, yes, but at the same time, as we all know, he has no idea what the law is. As he explained in his 100-Day interview with Time magazine last week, Trump doesn’t know how the Supreme Court ruled in the Kilmar Abrego Garcia case, and his lawyers continue to lie to him and tell him he “won” it, 9–0. He doesn’t believe he answers to the Constitution. He answers to his attorneys (and only sometimes; mostly, they answer to him). So it’s not so much that Trump is intentionally violating the high court’s rulings, but that he is a sock puppet president who doesn’t care what the law is and also doesn’t care to learn. The question for the rest of us is: What do we do with a unitary executive constructed around this yawning black hole?
OK, now for the good news. It’s not just that Trump is losing catastrophically in the courts, again and again, badly and unequivocally, although that actually matters a great deal. It’s not just that Trump has the lowest approval ratings in modern history, although that actually matters a great deal as well. It’s not just that the tariffs are an unmitigated train wreck and his Cabinet cannot stay on message, because the message is incoherent. It’s not just that Trump has helped the Canadian Conservative Party lose an election that was all but unlosable a few months ago. All of that matters.
But what really matters—what is measurable and knowable now in a way that was not a few weeks ago—is that standing up to Trump is going to be worth it. Propping up the law and the courts and the Constitution is suddenly proving to be a good bet.
This is hard to measure purely on global authoritarianism indexes, but what has truly changed is that in the midst of the fear and uncertainty of the “But he’s craaaaaaazy” posture that led to paralysis and even capitulation in January and February and March by everyone from Mark Zuckerberg to Target to CBS News to Paul, Weiss to Columbia University has been morphing very palpably into something different in recent days. Legal academics started to push back, Harvard sued, law firms refused to take the deal, and Big Law threw in behind them, as did young lawyers.
And judges are exceeding any expectations, not simply in rejecting the worst of the lawlessness but in actually attempting, with every power available to them, to sweep it back. We keep looking to Democratic Party leadership for fake-it-till-you-make-it energy, but that energy is already coming from the judicial branch. That is a story of tremendous moral courage under real and palpable threats and fear of reprisal.
So as we calculate and re-recalibrate how the rule of law is holding up at Day 100, the relevant inquiry shouldn’t be merely whether constitutional scholars say it’s finally time to push the panic button.
The question is who is massing power and authority and legal pushback and who is organizing and winning. And that is coming not from the big corporate interests who still deceive themselves into believing that Donald Trump can be coddled and bargained and mollified into becoming only a three-quarters fascist. It’s coming from May Day organizers and Tesla protesters who have run Musk out on a rail and from town hall participants and CBS News hosts and legal collectives and everyone else who saw what capitulating looked like and decided to stand up instead. This time, the 100-days marker actually signifies the time it took to shake it off and get to work.
It may have taken 100 days to fully metabolize the fact that the Trump administration has no regard for the rule of law and that it will pitilessly use the law for retribution alone. But given that this is now an established fact, 100 days have also shown us that small acts of defiance and principle are replicable and scalable and effective. Measured not in units of reckless disregard for the law, but rather in units of the moral imagination deployed in response, this thing is finally trending in the right direction.
Trump and his cronies have nothing behind them other than their miscalculation that nobody cares about abstractions like law and procedure and empathy. The rest of us have the momentum that inheres in a movement that is learning quickly what it must fight to protect, and what that fight will look like in practice.
We must resist, resist and resist again. We must be unafraid and we must be relentless.
No comments:
Post a Comment