Rapid Descent
It appears we have finally reached a fulcrum point in the last few days. The lawlessness of the Trump administration and its Republican accomplices is increasing and may be close to reaching the point where its authoritarianism is undeniable. The GOP’s rapid descent into fascism continues apace at all levels of government and we will soon discover whether they will just ignore the rule of law or be able to bend the law to enforce their fascism.
The Trump administration continues to defy court orders. The DOJ was forced to admit that they had sent a man who was legally in the country to an infamous Salvadoran prison under a contract between the US and El Salvador. When the judge ordered the man to be returned to the US, Trump’s press secretary responded by suggesting “the judge contact President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador”. The DOJ is now in front of the Supreme Court arguing that courts forcing the government to retrieve a man illegally deported would be an infringement of the executive’s Article II powers over foreign policy. This argument effectively allows the government to illegally seize US citizens and send them to some black site prison overseas with no due process and no recourse. That’s pretty much the definition of fascism.
In another case involving the deportations to El Salvador, a judge indicated the government was probably in contempt of his order to halt deportations under Trump’s invocation of the Alien Enemies Act of 1798, declaring “it seems to me that there is a fair likelihood…that the government acted in bad faith throughout that day. If you really believed everything you did that day was legal and could survive a court challenge, I can’t believe you ever would have operated in the way you did”. In Rhode Island, a federal judge ruled that FEMA was violating his prior order from March by refusing to disburse funds primarily to Democratic states whose immigration policies the Trump administration disagreed with. Lastly, the Trump administration is refusing to comply with another federal court order mandating the continued funding of Radio Free Europe/Radio Liberty.
Increasingly, judges are being forced to assume that the government lawyers are acting in bad faith. A judge in California blocked the revocation of TPS status for Venezuelan immigrants specifically citing the government’s “disingenuous argument”, adding, “[n]or has the government stated that, if the Court were to stay its postponement order, it will not immediately move forward with the removal of any Venezuelan TPS holder”. Finally, another federal judge in DC described that the government’s statements in the case to shutter the CFPB as “unreliable” and continuing, stating, “[the] eleventh hour attempt to suggest immediately before the hearing that the stop work order was not really a stop work order at all was so disingenuous that the Court is left with little confidence that the defense can be trusted to tell the truth about anything”.
This defiance of court orders and bad faith by the DOJ is unprecedented but, unfortunately, everyone seems to have adopted Chuck Schumer’s absurd position that this defiance is not really a constitutional crisis until it involves the Supreme Court. Unfortunately, SCOTUS seems inclined to support Trump’s destruction of the administrative state, at least temporarily allowing the cessation of grants by the Education Department, which prompted a strong dissent from Justice Jackson, noting the decision would “inflict significant harm on grantees — a fact that the government barely contests…Worse still, the government does not even deign to defend the lawfulness of its actions…States have consistently represented that the loss of these grants will force them — indeed, has already forced them — to curtail teacher training programs”. As is the usual case in these ridiculous shadow docket decisions that have increased dramatically at SCOTUS since Trump became President in 2016, the majority decision was unsigned and provided no opinion. Eventually, the Court will have to grapple with these cases and others that challenge the bogus emergency that Trump used to invoke the Alien Enemies Act as well as whether his destructive tariffs and decimation of administrative capacity through illegal impoundments and DOGE staffing cuts violate both the Impoundment Control Act and the Court’s own created-out-of-thin-air Major Questions Doctrine. It is worth noting that the Major Questions Doctrine was just another power grab by the Court when it diluted Congress’ power over the executive branch by voiding the “legislative veto”, which effectively resulted in requiring a vote of two-thirds of Congress in order to oversee the executive branch’s use of delegated powers.
The march to fascism also gained ground in the states. In Texas, Governor Abbott is refusing to call the special election to fill the House seat in Houston formerly held by the now-deceased Democrat Sylvester Turner. Abbott purposely missed the deadline for scheduling the vote for the next scheduled Texas election date in May. Typically, special elections are held on the next available voting date. The next voting date after May will be in November. Abbott is claiming that Houston is uncapable of running fair elections, which is ironic because the state abolished the Harris County election administration office in 2023 in addition to taking control of Houston’s independent school district. More egregious is the apparent overturning of the lawful election to the North Carolina Supreme Court of a Democrat who won the seat by just under 800 votes. A Republican-controlled lower state court just threw out 65,000 votes that were cast legally and followed the instructions of North Carolina election officials, ruling that the voters may be ineligible because the state’s database did not properly record proof of identity. There was ample evidence presented that many voters had provided that information, but it was not recorded properly by the state and no evidence that an ineligible ballot had been cast. Voters have two weeks to “cure” their ballots or else have their legal vote voided. Since the current Supreme Court without this seat being filled is split 3-3, a party line vote would not be enough to overturn the ruling. As one prominent Republican election lawyer noted, “By changing the rules of the game after it’s been played to potentially disenfranchise as many as 60,000 voters, this court has gone where no court has gone before”. A Democratic victory in this race would have given Democrats control of the State Supreme Court and a potential return to more fair and democratic elections similar to what happened in Wisconsin.
Similar changing of the rules is, unsurprisingly, happening in the Republican-controlled Congress. Senate Republicans have simply chosen to bypass the Senate parliamentarian and unilaterally decided that extending the temporary 2017 Trump tax cuts, which have already cost the government over $2 trillion, will cost nothing. Beyond the denial of math, this is another classic GOP bait and switch. The rules on reconciliation, which allows the budget to pass with only a majority vote and not be subject to a filibuster, require tax cuts to not add to the deficit beyond a ten-year period, otherwise they must sunset at that time. So this Republican maneuver not only invalidates the 2017 agreement but also renders the filibuster moot for permanent tax cuts since they can always be extended for no cost when the sunset period arrives. The filibuster would only remain for Democratic priorities. As one procedural expert noted, “If we were to get to a world where they’re just sort of ignoring the parliamentarian and not engaging all, that would be really profound change in how the Senate works, and a real erosion of rules-based legislating in the Senate”. Things are no different in the House where Speaker Mike Johnson and the GOP passed a rule that actual days do not count as legislative days so that Democrats cannot bring up a vote on Trump’s tariffs. So, in addition to denying math, Republicans are defying time in a brazen exhibition of raw power.
We should know in a short time whether there are enough votes on the Supreme Court to uphold the rule of law, with Trump’s claim that he can deport anyone overseas and they will be beyond the reach of the courts being the most urgent and important decision currently being heard. If the rule of law is upheld, we will then find out whether the Trump administration will continue to defy the courts and the law. If, on the other hand, the Court agrees with Trump, then the rule of law is finished, the fascists have won, and our democracy is done. And the battle to save our country will have to open on other fronts.