Within less than a month in office, the Trump administration exceeded its article II powers, diminished the role of Congress, and challenged the authority of the judiciary. Waving away his campaign pledge to lower the cost of groceries, Trump focused instead on maximal cruelty and political retribution dispersed with a wrecking ball.
Article I of the Constitution gives Congress, not the president, the power to establish federal agencies and to appropriate money to run them. But instead of examining expenditures and functionalities with an eye toward cutting costs, Trump and ketamine-crusted Elon Musk are blowing up entire government institutions, some of which have been in existence since the Revolutionary War.
As Trump serves up federal chaos as a surrogate for governance, one wonders if this is what the federalist-majority Roberts Court had in mind when it gave Trump immunity from criminal prosecution and invited him to do his worst — a challenge Trump is embracing with drool on his chin. One also wonders whether the Court will use one of the many pending cases to delimit its immunity ruling, or will again appease Trump to avoid a clash, thereby threatening the separation of powers and its own authority.
The Roberts Court teed up Trump’s criminality
Trump’s authoritarian rule disregards both Constitutional guardrails and federal statutes, limitations on power that would irritate any aspirant dictator for life. Staying in office permanently is a goal Trump has often repeated, a goal he tried to enforce through violence on January 6, 2021.
Trump likely assumes he will die in prison if he loses power, and seems poised to either start a civil war or WWIII to save himself. That he is not the first world leader to use violence or war to avoid prison offers cold comfort.
Trump’s wrecking ball is a Constitutional unravelling of the Roberts’ Court’s own making. In June the Court threw out the Justice Department's prosecution of Jan. 6 defendants by ruling that they couldn't be charged with obstruction for rioting at the Capitol, reasoning creatively that beating police officers, trashing capitol property and threatening death to elected officials to stop the certification of the 2020 vote wasn’t “obstruction” because it didn’t involve “documents.”
Trump thinks he’s above the law because SCOTUS said as much
The “no obstruction” travesty followed several other decisions in the same partisan direction. Last March, the Roberts Court blocked Colorado’s efforts to keep Trump off the ballot based on the Constitution’s plain language barring insurrectionists from public office. Section 3 of the 14th Amendment does not lack clarity. It bars anyone from federal office who “engaged in insurrection” after they swore an oath to support the Constitution. The opening words — “No person shall…” — make the ban mandatory, not optional.
Despite the 14th Amendment’s clear text, the Court ruled that states could not enforce the insurrectionist ban, even though states have primary Constitutional authority over elections, lest “chaos” ensue. Apparently Trump’s brand of chaos in blowing up the entire federal system suits them better.
The Court then salted the wound in July when, in a 6-3 partisan ruling, Roberts wrote an immunity opinion tailor-made for Trump, freeing him to violate criminal laws with impunity if his conduct relates to a “core function” of the presidency. Dissenting justices noted that Trump was now free to assassinate political rivals, an extension of the ruling Chief Justice Roberts has never effectively countered.
Requiem for the rule of law? Not yet.
As cases challenging Trump’s power grabs play out, the rule of law awaiting its fate, the looming question is who will prevail: federal courts pushing back, or Trump?
For now, my money is on the courts because it’s still too early in his second term for Trump to openly defy them. I harbor no doubt that this Nazi-adjacent administration will eventually tear up court orders and embrace the use of violence (again) to stay in power, likely deploying the military this time. But I don’t expect Trump to be this obvious, this early, because his Chief of Staff Susie Wiles is smart. Open and early defiance of court orders this soon would be a miscalculation that alienates marginal supporters who are not yet ready to overthrow the government. It could also upset the stock market and rankle high-dollar corporate donors, who need a reliable legal system to attract investors.
Musk and Vance, who have no criminal immunity (yet), will eventually risk criminal contempt in their fight to end medical research, put families on the streets and deny food to the hungry. Many federal judges who meant their oaths to the Constitution understand that the Roberts Court injured it by obeying Trump in advance. These lower court judges, hailing from both parties, will rein Trump in until the high court acts. Until then, expect Trump to continue to pretend to follow the law.
Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake Take, has no paywall.
