Waiting for the Rubicon

How long before Trump declares "now let them enforce it"?

The first weeks of Donald Trump’s second term have taken the form of a shock-and-awe campaign of illegal and unconstitutional executive actions, predictably spurring a bevy of lawsuits concerning everything from immigration to transgender prison inmates to federal personnel issues to disclosure of sensitive data to Elon Musk’s DOGE teams. And thus far, the courts—including numerous Republican-appointed judges—have demonstrated their willingness to toss at least temporary wrenches in the gears. Already, however, the administration appears to be flirting with simply disregarding court orders it finds inconvenient—a move that would precipitate a full-blown constitutional crisis.

Vice-President J.D. Vance provoked consternation recently with a post on The Platform Formerly Known as Twitter:

If a judge tried to tell a general how to conduct a military operation, that would be illegal.

If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.

Judges aren’t allowed to control the executive’s legitimate power.

The question begged by this vapid tautology is, of course, whether Trump is in fact exercising legitimate executive powers granted him by the Constitution, an interpretive question that has always been the core province of the judiciary. Yet already the nascent administration is testing the limits: At a minimum, it has failed to fully comply with a court order to unfreeze funds appropriated by Congress, prompting a federal judge to issue a “no-really-I-mean-it” follow-up order, which the Supreme Court has at least momentarily stayed.

Similarly, co-president Elon Musk has been ranting away furiously about how undemocratic it is for judges to impede potentially unlawful executive actions—which had previously been generally accepted as a basic feature of our constitutional order. One Republican member of Congress even filed articles of impeachment against a Republican-appointed judge who dared to block one of Trump’s questionable executive orders.

Even without these explicit statements testing the waters of defiance, it should have been clear from quite early on that Trump was plotting a deliberate collision course with the judicial branch. Too many of their early actions were unambiguously unlawful or unconstitutional to think otherwise—in ways that any competent judge would reject, as any competent lawyer would have told them. And not unconstitutional in some thorny, contested, close call way, but in a pretty basic civics 101 way.

It not a hard or particularly complex legal question whether a president can fiat away the Fourteenth Amendment’s long-recognized guarantee of birthright citizenship. It is not a hard legal question whether a president can categorically and indefinitely decline to release funds duly appropriated by Congress for specific purposes. It is not a hard legal question whether the president can unilaterally dissolve agencies established by federal statute. He cannot. You can find a few hacks and cranks willing to argue the contrarian position—just as you can find folks, occasionally with some sort of actual academic credential, to claim that the Earth is 6,000 years old and flat as a pancake—but these are just not seriously contested questions.

In other words, even the sort of C-list lawyer still willing to work for Donald Trump could have told him well in advance that these actions—among myriad others—simply would not fly in court, even with quite conservative judges. That invites the obvious question: Why would any president, and especially one as obsessed with the appearance of “strength” and dominance as Donald Trump, undertake such a large number of high-profile initiatives, knowing from the outset he’d have to humiliatingly reverse course when the courts reached their inevitable conclusions? The answer most consistent with everything we’ve learned about his character is that, one way or another, he imagines he will not need to back down.

At the same time, the Trump administration has been scrambling to radically shrink and centralize control over the federal bureaucracy—efforts which have themselves run up against obstacles in court. Much of this takes the form of mass layoffs, but we’ve also seen a shocking number of seasoned, and often quite conservative, government lawyers and senior officials resigning their posts rather than carry out orders they believed to be unlawful or unethical. And the “Department of Government Efficiency” (DOGE) has sought to seize control of the Treasury Department’s master payments system, which would place in the White House the technical means to freeze or release funds without reliance on intermediate layers of bureaucracy that might be torn about whether to obey a court’s order or the president’s.

Thus far, albeit with heels dragging and emergency appeals readied at every step, the administration has declined to openly defy the courts. But one must frankly be a bit willfully obtuse not to see how the stage is being set for that to change. All across the executive branch, the sort of person who places fealty to the law and Constitution over personal loyalty to Donald Trump is being laid off or forced out. Within a few months the commanding heights of the federal bureaucracy—and, perhaps no less relevant, federal law enforcement and the armed forces—will be fully in the grips of the sort of people who, faced with conflicting orders from the courts and from Trump, would have no qualms about choosing Trump. When that process is complete, it seems likely Trump will—no doubt sanctimoniously invoking the president’s right as head of a coequal branch to render his own interpretation of the Constitution—echo Andrew Jackson’s famous response to an obstreperous Supreme Court: “They have made their decision. Now let them enforce it.”

That is, after all, the dirty secret of law, and of power generally. Whether and how law binds, and who wields power, depends on agreement. In particular, it depends on the agreement of people with the technical and material means to implement policy, and in the ultimate recourse, on the agreement of the people with the most guns. If the Courts say the Social Security Administration must acknowledge the citizenship of children born to undocumented immigrants, but the bureaucrats in charge refuse to issue the necessary documents, then for practical purposes they are not citizens. If Congress says “Donald Trump is impeached and removed from office” (a fanciful scenario, but things change) while the armed forces and federal agency heads say “no, he’s still president,” then for all practical purposes, he is still president.

The courts can, of course, attempt in various ways to give their orders teeth. They can hold government officials in contempt, as individuals, and perhaps even order them jailed until they agree to comply. But who brings them to jail? Federal law enforcement officials under the command of the president. The judiciary requires the cooperation of the executive branch to actually enforce its orders.

Probably, of course, Trump hopes it does not come to that. The Supreme Court’s conservative majority has already demonstrated an extraordinary willingness to perform constitutional contortion acts on Trump’s behalf. If it becomes clear that Trump is ultimately willing to pull an Andrew Jackson and simply deny the Court’s authority, even the majority’s supposedly moderate institutionalist wing may decide to invent more novel doctrines blessing Trump’s actions, in hopes of preserving at least the appearance of the Court’s continued relevance.

This would in a sense be the worst of all worlds: A dictatorship in all but name animating the decaying corpse of a constitutional republic. Preserving the illusory appearance that the rule of law continued to function would make the constitutional crisis less stark, deniable, and thus less likely to provoke open resistance, especially if enough elected Democrats opt to go along with the pretense that business is proceeding more or less as usual.

If the Court is not so supine—and one has to hope that even this court might balk at playing handmaiden to the total subversion of the constitutional order—one has to hope that Trump ultimately blinks, no doubt loudly declaring victory in retreat.

If he does not, there are no attractive options. In the worst case, we face a more or less open repudiation of the constitutional order in favor of authoritarian executive rule. In the better but still ugly scenario, mass protest and open resistance halt the normal operation of society, and—fingers crossed—most of the folks with guns decide that it’s either morally abhorrent or simply infeasible to maintain martial law across a population of 350 million, at which point the administration collapses, and Trump presumably absconds to a well-appointed villa in the Moscow suburbs.

If all of this sounds paranoid or outlandish—and rest assured, I have to ask myself the same question—recall that Trump already made an unprecedented bid to retain power via fraud and violence after his last electoral defeat, frustrated largely by the fact that he began laying the groundwork to do so only in the final months of his term. He now has, in all likelihood, four years to lay that groundwork. We are far past the point where it is at all reasonable to suggest that such things can’t happen here, because they run counter to American traditions. Trump has made clear he does not feel at all bound by those constraints. And the chaos of his early weeks coheres disturbingly well if viewed through this lens: He intends to restructure the machinery of government such that his will can be enacted without checks from Congress or courts, and perhaps ultimately unchecked by meaningful elections as well.

I won’t pretend to know which of the ugly scenarios I’ve sketched is most likely. But I worry we may not have too long to wait to find out.