Why America is vulnerable to a despot
PRESIDENT OF THE UNITED STATES is a coveted job, at least among a certain type of power-crazed geriatric man. America’s founders nearly made the office more exalted still. John Adams, the first vice-president, thought the president should be known as His Elective Majesty or His Mightiness. The Senate endorsed another form of address: His Highness, the President of the United States and Protector of their Liberties. But the House of Representatives rejected grand titles, and George Washington went along with it to dispel claims that he had monarchical ambitions. The accusations flew anyway, and have been repeated whenever one party dislikes what the president is up to, which is to say most of the time.
Novelists have taken such fears further, imagining the overthrow of American democracy by a charismatic dictator: President Buzz Windrip in Sinclair Lewis’s “It Can’t Happen Here” (1935), Nehemiah Scudder in Robert Heinlein’s sci-fi series “If This Goes On” (1941), Charles Lindbergh in Philip Roth’s “The Plot Against America” (2004). President Scudder, a preacher-turned-politician from the boondocks, wins the election of 2012. The election of 2016 is then cancelled.
As November’s election draws near, it is not just novelists who are imagining similar scenarios. Democrats see Donald Trump as a would-be tyrant because of his attempt to remain in office after losing the election of 2020. Mr Trump, for his part, denounces Joe Biden, who won the election despite Mr Trump’s scheming, as a usurper. Mr Trump claims Mr Biden is abusing his authority to initiate bogus legal proceedings and so get Mr Trump locked up. Mr Biden, together “with a band of his closest thugs, misfits and Marxists”, is trying “to destroy American democracy”.
Mr Trump’s efforts to overturn the election flopped, the courts regularly overruled his administration and, even if he is re-elected, he will be limited by the constitution to just one more term. Even so, some of his critics argue that America’s democracy is vulnerable, and dismiss those who say otherwise as naive. Last year Robert Kagan, a former foreign-policy adviser to various Republicans, wrote an essay for the Washington Post arguing, “There is a clear path to dictatorship in the United States and it is getting shorter every day.” It is not just Mr Trump’s opponents who talk this way. One of his former cabinet secretaries observes, “The constitution works because it’s employed with rules and norms that we all abide by.” Mr Trump, in his view, “will and has continued to erode those rules and norms” and is therefore “a threat to democracy as we know it”.
The former president, who likes to comment on his actions as if he were an observer of them, has joined in the debate. Last year he was asked on Fox News whether he would be a dictator were he to be re-elected. Mr Trump entertained the idea before dismissing it. As so often with him, it was hard to know which of his conflicting statements to take seriously, if any. In a less theoretical sense, the Supreme Court is weighing whether and under what circumstances presidents can be prosecuted. At least some of the justices will probably agree with Mr Trump’s view, “You can’t have a president without immunity.”
Make authoritarianism great again
When thinking through what a second Trump term would bring, it is hard to avoid veering into either hysteria or complacency. It is likely, given Mr Trump’s instincts, past behaviour and dominion over his party, that he would further degrade democracy in a second term. But assessing the probability of the worst-case scenario is impossible. There is another way to ponder how bad things could get, though, which is to depersonalise the analysis. Setting aside the unknowable—what Messrs Trump and Biden truly intend and how far they are prepared to go—what are the constraints on the presidency, whoever holds the office? If someone became president who had the administrative dexterity and fixed resolve to undermine the constitution (descriptions that probably do not fit Mr Trump), how much damage could he or she do? Or, to put the question in more alarming terms, how dictator-proof is America?
For most of the first century of presidenting, the idea that one man could rule the country seemed absurd. The office was too weak for that. Under Washington the entire executive branch consisted of four cabinet secretaries and five actual secretaries. It was not until after the first world war, when the federal government had grown dramatically and fascists and communists were taking over European democracies, that the question started to seem relevant and the idea even vaguely plausible. By the end of the second world war the number of federal employees had increased to 2.5m. In the 1940s and 1950s it became common for Americans to refer to their president as the “commander-in-chief”. An office that originally came with a handful of staff now presided over millions, not to mention a button that could destroy other countries and invite America’s destruction in return.
Even as the power of the president has vastly increased, the legal constraints on the exercise of that power have not grown in proportion. There have been just two significant constitutional amendments that might curb a president running amok: that no president can be elected to more than two terms (the 22nd Amendment) and that the vice-president will take over if the Congress decides the president is incapacitated (the 25th). Neither restricts the day-to-day exercise of presidential power.
In the inter-war years, dictatorship had a certain chic among elite Americans. Eleanor Roosevelt suggested to her husband that the country might need a “benevolent dictator” to drag it out of the Depression. “If ever this country needed a Mussolini, it needs one now,” declared a senator from Pennsylvania. This sort of talk was only silenced by the attack on Pearl Harbour.
That nothing like the dictatorships imagined by Lewis, Heinlein or Roth has happened is largely owing to the fact that nobody like Windrip, Scudder or Lindbergh has ever been elected president. Civics classes teach that it also has something to do with the constitution. America is so big and political power so diffuse, with so much authority devolved to the states, that one-man rule still seems impractical as much as anything. Military coups—dictators’ most common route to power—are nigh on impossible in America. The army is among the healthiest political institutions in the country, with leaders who are determined to stay out of politics. The vast majority of police officers work for state and local governments, not the president, so repression by a police state would be hard to organise, too. That sort of tyranny can safely be discounted.
The courts are independent and wilful—even the one where three of the nine justices were appointed by one of this year’s presidential candidates. The press is too diffuse for one party to control along the lines of Viktor Orban and his Fidesz party in Hungary. Even with a determined assault on the federal bureaucracy of the type that some Trumpy think-tankers have in mind, getting any organisation that employs 25,000 lawyers to do one person’s bidding is hard. Both the current and the former president have seen relatively mundane policies slow-walked or thwarted by procedural challenges: imagine what would happen if the president tried to cancel the 2028 election.
Many of these restraints depend on democratic habits and norms rather than on what is written in law. Some of the most important conventions curbing the presidency are younger than the people currently competing for the office. The notion that the Department of Justice cannot just do the president’s bidding has existed only since the disco era. As the people in office change, norms can change with them, leaving the constitution, acts of Congress and the Supreme Court as a backstop. This is where things get more worrying.
Start the steal
The civics-class view of American government depicts the constitution as a far-sighted and masterful protection against tyranny. Yet replicas of America’s constitution have been adopted in other countries and failed to keep tyrants at bay. In the 19th century Latin America’s new republics copied the template—federalism, a supreme court, a legislature and a president—and their democracies were overturned by men with guns. In the 20th the Philippines cut and pasted America’s constitution, yet Ferdinand Marcos managed to undermine democracy and install himself as a strongman ruler for more than 20 years. In contrast, where America has helped set up parliamentary systems, such as in Iraq, Italy and Japan, the institutions have endured. That prompts a heretical thought: what if America has been dictator-proof despite the constitution, rather than because of it?
The civics-class interpretation of the constitution dwells on the checks and balances that prevent any part of the government from becoming too powerful. Yet the most explicit check on the president, impeachment, does not work. Although three presidents have been sent by the House for trial in the Senate (Mr Trump twice), the upper chamber has never actually removed one from office. Even when Mitch McConnell, the Senate majority leader at the time, said Mr Trump was “practically and morally responsible” for the mayhem of January 6th 2021, he and his colleagues decided against removing him from office. The reason he gave was that Mr Trump had clearly committed a crime and that the right place to prosecute him was in the courts. But the January 6th trial, much delayed and on questionable legal ground, shows how uncertain the legal system’s capacity to limit presidential power is.
Jack Smith, the prosecutor in the case, is pursuing an untested legal theory that the president was part of a conspiracy to defraud the United States. Before the case can go further, the Supreme Court has to decide when the president is and is not immune from prosecution, a question the constitution does not help with. Mr Trump’s legal team has backed away from its initial claim that a president should have immunity even if he were to have a political rival assassinated. Its new position is that presidents are immune from prosecution when performing their official duties—a view some members of the Supreme Court seem minded to accept. But it is the things done in an official capacity that are the most worrying for the country, not small acts of personal corruption or feuds with rivals. If presidents are immune from prosecution for what they do as president, and if they have political immunity because impeachment is not a real check, then they are above the law.
This was not part of the original plan. The Founding Fathers did not anticipate the rise of partisanship, which has hollowed out the impeachment clause. Some of the powers early Congresses handed the president, though, were designed to make what Americans would now call autocracy a bit easier. Although the Founders wanted to prevent a home-grown dictator, they had also just lived through a war for independence against a powerful enemy and wanted to give the president the means to maintain order in times of crisis.
The Brennan Center, a think-tank at New York University, has identified 135 statutory powers that accrue to the president when he declares a national emergency. These include things like the power to freeze Americans’ bank accounts or, under a law giving the president emergency powers over communications that was passed in 1942, to shut down the internet (which thankfully would be pretty hard in practice). In theory Congress is meant to review and potentially revoke the president’s declarations after six or 12 months. In practice it is casual about curtailing them. Over 40 emergencies are currently in force. Some of them are more than a decade old.
In wartime, emergency powers have been used to close down newspapers (under Woodrow Wilson), to suspend the right to a trial before being locked up (Franklin Roosevelt) and to justify surveillance of Americans and torture of foreigners (George W. Bush). But plenty of these powers can be used even when the threat to the nation is remote. An emergency is an emergency when the president says it is and his lawyers agree. Most emergencies are declared to deploy federal resources when there is a natural disaster, which is how the power should work. But as it has become harder to pass legislation, presidents have found this escape route too tempting to leave unexploited. Mr Trump’s border wall was built under emergency authority. President Joe Biden’s forgiveness of student debt, which has cost 0.6% of GDP so far, was also done under emergency presidential authority.
Presidents Windrip, Scudder and Lindbergh had something more sinister than wall-building or student-loan forgiveness on their minds when they seized power, though. To get closer to the nightmares imagined in those novels probably requires troops on the streets. Here, too, the past is not wholly reassuring. There have been close to 70 occasions in American history when state or local governments have declared martial law. Despite some contemporary worries about the possibility of a repeat, what is mainly striking about this variant of emergency power is how it has fallen out of fashion. The last time martial law was declared was in Cambridge, Maryland, in 1963 to quell unrest after a cinema forced black moviegoers to sit in the back rows of the balcony. The Maryland National Guard stayed for a year.
Nowadays the deployment of troops and suspension of liberties on American soil by the federal government is hard to imagine. Yet if a tyrannical president wished to do so, he would have the power to send in the troops under the Insurrection Act. This law, dating from 1807, gives the president the authority to deploy the army or the navy in the case of a domestic uprising or where federal law is being ignored. The act states that this can be done when lawful, without defining when that means. “It’s a loaded gun for any president. There are practically no constraints,” says Jack Goldsmith, a former attorney-general and current scholar of presidential power who is part of an effort to reform the act.
Armed with the Insurrection Act, what could a determined, malign president do? The law has been used to break strikes, to desegregate the South and, under George H.W. Bush, was invoked during race riots in Los Angeles in 1992. Mr Trump may have considered using it in 2020, when some protests turned violent after police in Minneapolis killed George Floyd, a handcuffed black suspect. In the end, despite a call from a Republican senator to do so, he demurred. “He understood that the Insurrection Act is a break-glass thing,” says a former senior official in the Trump administration. “And anyway, the Department of Defence is not in a rush to operate against American citizens.”
Lock whomever up
Mr Trump’s contemporaries at the New York Military Academy, which he attended as a teenager, recall drills, occasional sadism and votes for the school’s “lady’s man of the year”—the first election that Mr Trump ever won. The place appealed to wealthy parents who thought their children could use some military discipline. It was also favoured by Latin American dictators, who presumably thought their offspring would learn valuable lessons in the exercise of authority. The former and perhaps future president has ignored election results he does not like, encouraged mob violence and mused about using the National Guard to deport millions of migrants who are in the country illegally. His disciples are better prepared for office than before. There is no clear limit to what his party will accept from him. That, in turn, means that some Democrats are prepared to disregard norms to prevent him from returning to power, a dynamic that, unchecked, leads to mutual destruction.
And yet scholars of democratic decline—thanks to the 45th president, a booming field—point out that the most dangerous moments for government by the people are during a crisis, which a president may exploit to seize extraordinary powers and then not let go. When faced with two such crises during his presidency—covid-19 and nationwide protests after Mr Floyd’s murder—Mr Trump retreated into commentator mode, pointing out what a poor job everyone else was doing. Even his worst acts as president, such as the pressure on Georgia’s secretary of state to stuff ballot boxes on his behalf, were more improvised chaos than cunning subversion. He wondered out loud about shooting protesters in 2020, but didn’t do so. A more disciplined despot-in-waiting (or a more malignant version of Mr Trump), however, would have ample scope to subvert America’s democracy. Partially by design, America is not dictator-proof. ■
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