The Insurrection Act permits a president to call on the military to suppress “any insurrection, domestic violence, unlawful combination or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” So, in case you were wondering, a President Donald Trump could send the army to, say, California to put down a real or imagined crime wave in a “sanctuary city.” Who decides if the emergency meets the threshold of “unlawful combination?” The president, of course.
As the election draws closer, and Trump continues to hold a lead in swing states, and his felony conviction, in all likelihood, bounces off his armor-plated support, we increasingly ask each, “Is it the end of liberal democracy?” But what, exactly, are we imagining? What do we think Trump would actually do? In his recent book-length essay, Rebellion: How Antiliberalism Is Tearing America Apart--Again, Robert Kagan predicts that a President Trump would destroy not only the liberal principles upon which American government rests but democracy itself. He would become, in effect, our Putin. Is that what we think?
It’s an impossible question to answer with any confidence. No one, almost certainly including Trump himself, knows what he plans to do. We can look to the example of other democratic states that have elected autocratic populists, including Hungary, Poland, Turkey and Brazil. We can take some encouragement from the fact that none of those leaders were able to lock in permanent changes or annul elections, and two of them have returned to their former state. Liberal values are far more deep-seated in the United States than in those much younger democracies. We should have better antibodies. But our immune system may be less robust than we think.
We all grew up learning that our constitutional system was designed to prevent the tyranny that the Framers regarded as the default condition of all government. Power is dispersed both horizontally, across the three branches of government, and vertically, between federal, state and local jurisdictions. The other two branches, in combination with public opinion, have blocked some of the worst examples of executive overreach, whether FDR’s court-packing scheme or Richard’s Nixon’s use of the IRS and other agencies to go after enemies. Those forces, collectively, also blocked the January 6 coup attempt.
Yet the truth is that we’ve never known what weapons a president has at his command because we’ve never had a president determined to use them on his own behalf. Presidents Eisenhower and Kennedy invoked the Insurrection Act to force compliance with desegregation orders; deploying the act to crush domestic political opposition would plainly constitute a corrupt usage, but the wide latitude the law grants to the president might give a sympathetic Supreme Court reason to defer to Trump’s decision.
The same may be said of the vast network of emergency laws available to a president. The U.S. Constitution contains no provisions for national emergency, but presidents have long invoked the “inherent” powers of Article II to exercise emergency powers in war-time, as Lincoln did when he suspended habeas corpus or George W. Bush did when he authorized warrantless wiretapping after 9/11. Many current laws expand presidential powers under emergency conditions; the Brennan Center has produced an invaluable list of 135 of them. Most pose little danger of abuse. But a 1942 law allowing the President to take control of “any facility or station for wire communication” under “a state or threat of war” could allow Trump to commandeer the Internet, or at least try to do so. Another law would allow him to impose sanctions on any citizen accused of aiding suspected foreign terrorists.
Trump may not even need to invoke emergency powers to threaten civil liberties. The crackpot legal scholars whom he depends on, and who he will install in office, subscribe to the “unitary executive” theory, which holds that the President exercises all executive authority. The Department of Justice and subsidiary bodies like the FBI enjoy independence from the White House as a matter of both tradition and law; Trump and his men don’t accept that. The author of the chapter on the Justice Department in Mandate For Leadership, a volume of policy proposals for the new Trump presidency, lays out a case for reducing an “out of control” FBI to a tame instrument of the president. Trump is likely to take direct control both of the department and the bureau and use them to hound his political enemies and obstruct investigations into his own misdeeds.
Of course doesn’t “believe in” the unitary executive or any other theory; he just practices domination and demands submission. The question of what he wants to do with the presidency may not actually be very complicated. Unlike in 2016 or 2020, Trump has dispensed with an “agenda”; the only persistent subject of his speeches is his grievances and his plans to get even with those he holds responsible. That will include not only weaponizing law enforcement but using paramilitaries like the Proud Boys and the Oath Keepers as a Brown Shirt force to terrorize critics and protestors, especially should the U.S. Army push back against orders to crush peaceful dissent. Left to himself, Trump would generate chaos and spasmodic violence.
But he won’t be left to himself. The people around Trump do have theories, and substantive aspirations. The deeper question will thus be, “How will Trump’s wishes interact with those of the people around him?” This is the question posed by Rebellion. Kagan argues that America has always harbored a political and cultural underworld of racists and nativists who dream of overthrowing liberal democracy. A century ago the Klan almost took over the Democratic party; today’s Christian nationalists have found in Donald Trump a far more congenial vehicle for “regime change.” A Trump presidency would bring together a politician of profoundly fascist temperament but no plans beyond self-aggrandizement and a powerful movement that despises the values by which our nation has been governed since the founding. That is the apocalypse.
I don’t think this worst-case scenario is the likeliest one. First, only a small fraction of the Right shares the dream of theological rule, though that includes leading thinkers like Patrick Deneen and Adrian Vermuele. The ambitions of the theocrats will run headlong into the proud boys and mad boys and bad boys; and they’ll both have to contend with the plutocrats who have no problem with liberalism so long as it means free markets. You don’t, of course, need a majority for a revolution; Lenin proved that you only succeed with a handful of zealots. But you do need Donald Trump, and I can’t imagine Trump allowing anyone’s project to preempt his own. Trump’s narcissism–really, his solipsism–ensures that nothing holds his attention for long save his own self-interest. He’s more like Berlusconi than Mussolini.
I’m not nearly as worried about the little coven of theocrats as I am about the tens of millions of Americans whose attitude towards liberal democracy is “screw it.” They don’t care if Donald Trump is a bully, a crook, a misogynist, a liar. He hates what they hate–what he’s taught them to hate–so they don’t care if he tramples on all those niceties they learned about in 8th-grade Gov class. They’re not looking for the Kingdom of God; they want what Trump wants–revenge. I wouldn’t want to be Hunter Biden or Jamie Raskin in 2025.
Yet those many MAGA voters who neither cherish liberal democracy nor loathe it may prove to be the limiting factor on Trump’s rule. Will the time come when, all enemies laid low, they’ll look around and ask if their lives have gotten any better? That’s the moment Donald Trump has to worry about.