This piece is also appearing this coming weekend in newspapers in the very red Virginia congressional district (VA-06) in which I was the Democratic nominee for Congress in 2012.
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The American people need to understand that what has been happening to the American system of government is unprecedented in its destructiveness of our constitutional order — and the Supreme Court has played a central role in enabling that destruction.
Donald Trump could not have become president again without the indefensible conduct of the Supreme Court on his “presidential immunity” claim. The lower courts had rejected that claim powerfully, persuasively, and correctly. Had the Supreme Court affirmed their decisions, Trump would have faced trial for the most serious crimes in American history.
Instead, the Court delayed the case unnecessarily long enough to ensure that no trial could occur before the election — and then ruled that the President of the United States is substantially above the law, a result the Framers tried mightily to prevent.
Trump had been lawless before, and the Supreme Court protected him. When he returned to the presidency — flush with the feeling that he could commit grave crimes and still prevail — he gained not only the powers of the presidency but also the confidence that he could get away with behaving like a dictator.
The Supremes gave us this authoritarian presidency. And -- as that presidency has reached out destructively in every direction -- the Court has often continued to act as Trump’s accomplices.
Now we are at another critical juncture. Several upcoming Supreme Court cases involve actions in which Trump clearly violated constitutional or statutory limits. The American people need to know whether the Court will uphold the constitutional order it swore an oath to protect — or once again defend the indefensible, granting free rein to a president engaged in a multi-front assault on the Rule of Law.
Here are three of the cases that will test the Court’s integrity:
- Learning Resources, Inc. v. Trump — Challenges Trump’s sweeping tariffs imposed under the International Emergency Economic Powers Act (IEEPA), arguing that tariff authority belongs to Congress and that Trump’s use of IEEPA is an unconstitutional overreach.
- Trump v. Cook — Concerns whether the President may unilaterally remove a member of the Federal Reserve Board, threatening the independence of institutions Congress intentionally insulated from presidential control.
- Trump v. Slaughter — Examines whether the President can fire commissioners of independent federal agencies without cause, eroding the separation between executive authority and the regulatory bodies essential to a functioning constitutional order.
Even if the legal issues in these cases were ambiguous — and they are not — they must be understood in the context of Trump’s broader pattern of lawless power-grabbing: trying to extract protection money from media companies; using federal grants to compel private universities to do his bidding; sending the National Guard into cities controlled by the opposing party without invitation or need. So each act of lawless presidential behavior is not isolated, but is part of a pattern that shows the necessity of coming down on the side of presidential limits. And each case is the same case: Will the Court defend the order they swore an oath to defend, and which have made this a free country?
In the context of a sustained attack on constitutional norms, the imperative becomes overwhelming that the Rule of Law must be defended.
But this Republican-appointed Court majority has given us serious reason to fear that they will betray their oath. And if this Court again rules --indefensibly -- for Trump, the nation must begin asking in a most serious way: What must be done when a Supreme Court shows itself to be illegitimate?
(Not only blatantly partisan, but partisan on behalf of a political force working to replace American democracy with the kind of authoritarian regime this nation has always stood against.)
A nation cannot remain “a government of laws, not of men” when the “men” in robes who sit atop the system place themselves above the law.
History will judge this free people by how we respond if the Court deepens this crisis in the Rule of Law in America.
That challenge would have to be confronted. And there are no easy solutions, but the question must at least be urgently asked:
What does a free people do when those who lay down the Law have become the allies of the outlaws?
The issue is not some abstract “should”; it’s not because we’ve pledged allegiance. We pledge that allegiance because we want to live in that kind of a society. If Americans allow this moment to pass without protest, the price will be paid not in abstractions but in the way it is to live our lives.
When a president is permitted to rule outside the law, ordinary citizens lose the protections that make liberty possible: the right to fair treatment, the right to dissent without fear, the right to a government bound by rules rather than by the will of one man. They lose the right to have a say in who gets to rule, and with what powers.
A Court that abets a lawless ruler puts in jeopardy all the freedoms that Americans have always taken for granted.
