Competence, corruption and control all impose limits on the ability of any administration to achieve its agenda and impose its will.
Even in an authoritarian era, the competence of specific aspiring authoritarians matters greatly.
As does their degree of corruption, even in a completely corrupted era.
And lastly, the ability of specific administrators to impose authoritarian measures requires that they achieve control of existing institutions or to build new ones.
Post-Constitional Order?
This is even true in a post-Constitutional order period, such as the United States in the fall of 2025.
I struck out the word “order” because while I agree with Thomas Neuburger that we are in a post-Constitutional state, I do not believe the Trump administration, or the various corporate factions supporting him, have so far succeeded in imposing a new order.
Some elements in the administration (Stephen Miller) are clearly attempting to however, and their ambitions are authoritarian.
For this post I intend to focus on the legal and political aspects of the situation.
Some readers may argue that the judicial branch of the American government has become so politicized that it no longer has non-political authority.
I agree, but the judicial news is relegated to a parallel media ecosystem so the distinction between legal and political is still a useful one when monitoring the news.
What’s Competence, Dude?
Let’s focus on hapless FBI director Kash Patel to start.
The man is no J. Edgar Hoover with a nation-wide law enforcement apparatus under his absolute control.
This CNN piece headlined “‘It’s unacceptable’: Inside growing concerns about Patel’s FBI leadership” is fat on leaks from inside the FBI and portrays Patel as an utter incompetent:
It was just hours after Kirk was shot at a Utah university that Patel made his most significant misstep of the investigation. In a social media post, the FBI director said the bureau had a “subject for the horrific shooting” in custody.
But the post on X came just minutes before officials in Utah stood in front of cameras at a press conference and announced the shooter was still at large.
The FBI was, in fact, questioning someone in relation to the shooting, and state and federal officials at the press conference scrambled to course correct to be in line with Patel. Still, soon after the conference was over, Patel backtracked by posting that the subject had been released.
Leaders at the Justice Department saw the posts as embarrassing, privately criticizing Patel for using social media to prematurely announce that investigators had made a breakthrough only to walk it back less than two hours later, two sources familiar with the matter told CNN.
Similarly, Stephen Miller’s ICE raid on two South Korean-owned facilities in Georgia isn’t winning medals for execution, although it was ambitious indeed.
Almost 500 people were detained during a raid of a Georgia battery plant owned by two South Korean manufacturers last week, the largest immigration enforcement operation at one location in the history of the Department of Homeland Security.
But in at least one instance, officials admitted a worker was employed legally and forced him to leave the country anyway,…
The fallout from the operation at the plant was the latest example of the dragnet-like nature of Mr. Trump’s immigration policy and how it can conflict with other stated policy objectives, such as bolstering production in the United States.
…
ICE planning documents suggest that agents were not necessarily targeting temporary South Korean workers last week.The original warrant for the raid listed only four Hispanic individuals. According to Mr. Kuck, agents did not have any Korean speakers on hand during the raid and had to use apps to translate.
“It was an accident” that ICE picked up the South Korean workers, Mr. Kuck argued. “They just transported everybody to the jail to sort it out later.”
Regional MAGA leader, Texas Attorney General (and candidate for US Senate) Ken Paxton faces similar hurdles of his own making, via The Texas Tribune:
Texas Attorney General Ken Paxton filed an explosive lawsuit, accusing Beto O’Rourke of bribery, fraud and campaign finance violations for supporting Texas Democrats who left the state to protest new GOP congressional maps.
Six weeks, four courts, two counties, dueling rulings and hundreds of thousands of dollars in legal expenses later, Paxton’s case against the former El Paso congressman seems on the brink of collapse.
Last week, the all-Republican 15th Court of Appeals undid the temporary restraining order that prevented O’Rourke and his organization from fundraising and distributing donations, ruling it an unconstitutional violation of free speech protections.
“[T]he question today is not whether such activities can be punished after the fact … but whether they can be prohibited before they occur based on a suspicion that they might,” the justices wrote in their unanimous ruling. “At this stage, where little evidence has been offered, the latter would constitute an unconstitutional prior restraint of political activity that may or may not prove to be lawful.”
The court still has to rule on the rest of the appeal, but in Friday’s opinion, they cast doubt on some of Paxton’s central arguments. Paxton condemned the ruling as a constitutional crisis, slamming the court’s “activist judges,” along with the all-GOP Texas Supreme Court for declining to step in.
Choking on Corruption
Yves Smith’s repost of and commentary on Brad Smith of CommonDreams’ “‘Incredible Corruption’: Blockbuster Report on Trump Crypto Grift Leaves Observers Stunned” covered Trump’s massive crypto scam earlier this week, but this rotten POS stunt deserves repeated and expanded coverage.
Some members of Trump’s administration may be working very hard to impose an authoritarian agenda, but POTUS seems to be very focused on the main chance.
From the NY Times’ “Anatomy of Two Giant Deals: The U.A.E. Got Chips.The Trump Team Got Crypto Riches.”
This summer, Steve Witkoff, President Trump’s Middle East envoy, paid a visit to the coast of Sardinia, a stretch of the Mediterranean Sea crowded with super yachts.
On one of those extravagant vessels, Mr. Witkoff sat down with a member of the ultrarich ruling family of the United Arab Emirates. He was meeting Sheikh Tahnoon bin Zayed Al Nahyan, a trim figure in dark glasses who controls $1.5 trillion of the Emiratis’ sovereign wealth.
It was the latest engagement in a consequential alliance.
Over the past few months, Mr. Witkoff and Sheikh Tahnoon had become both diplomatic allies and business partners, testing the limits of ethics rules while enriching the president, his family and his inner circle…At the heart of their relationship are two multibillion-dollar deals. One involved a crypto company founded by the Witkoff and the Trump families that benefited both financially. The other involved a sale of valuable computer chips that benefited the Emirates economically.
While there is no evidence that one deal was explicitly offered in return for the other, the confluence of the two agreements is itself extraordinary. Taken together, they blurred the lines between personal and government business and raised questions about whether U.S. interests were served.
Robert Reich expanded on Trump’s crypto empire:
This is just the tip of the iceberg of Trump’s crypto corruption.
To understand the full extent of it, you need to go back to four days before early voting started in 2024. That’s when Trump and his sons launched the crypto firm, World Liberty Financial.
As soon as Trump won, money started pouring in.
Then, just days before returning to office, Trump launched a separate crypto scheme, selling TRUMP and MELANIA memecoins. Memecoins are a type of cryptocurrency based on an image or online joke.
Within his first six weeks in office, Trump called for a “Crypto Strategic Reserve”— a government backed stockpile of crypto assets, sort of like our oil reserve, but completely pointless. That announcement made crypto prices soar.
So far, the Trump family has made about $3 billion from crypto — with many purchases by foreign buyers. Forbes now estimates that over half of Trump’s entire net worth is crypto-based.
With Trump acting as both the president of the United States and as his own crypto brand ambassador, it’s hard to tell which job he’s doing at any given moment.
I’m not sure which Trump is in charge, ambitious aspiring dictator hell-bent on forging a lasting order out of chaos, or penny-ante grifter who’s stumbled into the score of his lifetime.
Maybe this video from last weekend’s Yankees game can help readers reach their own conclusions.
DJT-YMCA | BRONX, NYC🕺 pic.twitter.com/qCnCnpeBT3
— Dan Scavino (@Scavino47) September 12, 2025
Political Control of Courts?
The judicial branch of the U.S. government has become so flagrantly corrupt and openly partisan that it can no longer send legal signals that subtly guide lower court decisions.
The U.S. Supreme Court has resorted to novel methods of expediting Trump’s agenda. This piece from The Federalist is quite revealing, despite their intention to support the court and blame the issue on “rogue judges”:
No NFL team in the last 50 years has had a perfect season, but this is Trump’s record in the U.S. Supreme Court: 18-0. His splendid solicitor general, John Sauer, has racked up 18 wins this year by staying lower court decisions against Trump and thereby allowing the president to exercise the full “executive power” granted by Article II of the Constitution.
These victories have been on emergency applications to the Supreme Court, where it is difficult to obtain the justices’ attention and even more challenging to prevail. Also called the “shadow docket,” these wins by Trump have come quickly, without oral argument, often by a 6-3 or greater margin.
Seven of these wins have been on deporting illegal aliens, five on firing unnecessary federal workers, four on terminating wasteful federal spending, one on ending transgender personnel in the military, and one on stopping the epidemic of nationwide injunctions by district court judges.
On Monday, Chief Justice John Roberts granted a stay to Trump, as requested by Sauer, of a D.C. Circuit ruling that had blocked Trump from removing a commissioner of the Federal Trade Commission. Despite being on the court’s traditional summer vacation until it returns later this month, Roberts granted Trump’s request on the second business day after it was filed.
Supreme Court Justices Neil Gorsuch and Brett Kavanaugh slapped around lower court justices in a recent ruling, per CNN:
“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” Justice Neil Gorsuch admonished in an opinion last week tied to the court’s decision to allow Trump to cancel nearly $800 million in research grants.
The rebuke, which was joined by Justice Brett Kavanaugh, flipped the narrative that it is Trump who has pushed legal boundaries with his flurry of executive orders and support for impeaching judges who rule against him. A wave of legal conservatives took to social media to tout Gorsuch’s warning.
“This is now the third time in a matter of weeks this court has had to intercede in a case ‘squarely controlled’ by one of its precedents,” wrote Gorsuch, who was Trump’s first nominee to the high court. (Kavanaugh was Trump’s second.) “When this court issues a decision, it constitutes a precedent that commands respect in lower courts.”
Other conservatives have been just as harsh this year. Justice Samuel Alito in March accused a federal judge in another case involving a Trump policy as committing an “act of judicial hubris” and “self-aggrandizement of its jurisdiction.”
The Supreme Court has been consistently siding with Trump on the emergency docket for months, including in high-profile cases dealing with immigration, spending and the leadership of independent agencies. And Trump has won even in cases in which there are serious arguments that his administration defied a lower court, said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
“Gorsuch’s opinion in the NIH funding case is perhaps the most direct articulation yet of why — because the justices seem more concerned with lower courts correctly reading the tea leaves in their (often unexplained) rulings than with the executive branch behaving properly before the rest of the federal judiciary,” Vladeck said
Two Federalist Society members opined at the Wall Street Journal about “The Judicial Insubordination Crisis”:
some lower-court judges have become brazenly defiant, not only of the administration’s agenda but also of high court opinions. In response, the justices have had to remind lower courts of their constitutional role and chastise them for resisting court precedent. But the resistance continues, threatening to erode the judiciary’s ability to function.
…
To be sure, it isn’t always easy to apply the high court’s precedent, especially when it entails open-ended balancing tests, flexible doctrines and conflicting directives within opinions and with older rulings. In Students for Fair Admissions v. Harvard (2023), to take a recent example, the justices held that race-based college admissions programs violate the Equal Protection Clause—but that colleges can consider “an applicant’s discussion of how race affected his or her life.” That concession invites colleges to continue considering race, spawning more ambiguity and litigation.Compounding the problem of ambiguous precedent, some district judges have issued vague and sweeping decisions that grant injunctive relief to stop the executive branch from acting. These decisions, in turn, force the Supreme Court to issue emergency orders more frequently. Such orders are handed down quickly, without full briefing or argument. Lower courts then lament that the orders are unclear, which results in flawed rulings that lead to more emergency orders from the justices. So far this year, the high court has issued 20 emergency orders, revealing a significant disconnect between the justices and some lower-court judges.
SCOTUSBlog has a different take in “The Supreme Court fails to apply its own precedent and continues to sow confusion through its shadow docket“:
…one reason the Supreme Court is issuing so many shadow docket rulings without explanations is that the justices cannot themselves agree on the reasons for the orders. I also argued that such disagreement by itself counsels against granting emergency relief.
…the court’s opinion in Trump v. CASA suggested that it was applying a new, unique, and unjustified standard for evaluating when the government is experiencing irreparable harm, …a majority of the court may think that the government necessarily suffers irreparable harm when a lower court enjoins the government from doing something it wants to do.
The court’s Aug. 21 order pausing a district court injunction related to National Institutes of Health grants provides evidence for all of these claims…
In National Institutes of Health v. American Public Health Association, … Judge William Young, a Reagan appointee, stated: “I have never seen a record where racial discrimination was so palpable … I’ve sat on this bench now for 40 years, and I’ve never seen government racial discrimination like this.” Young also called out “discrimination against America’s LGBTQ community” inherent in the grant terminations. Ultimately, Young issued a preliminary injunction barring the government from suspending the grants.But the Supreme Court addressed none of that. Instead, in an opaque order and a series of fractured opinions, it granted the Trump administration’s request to stay the district court ruling requiring the grant payments to be made. …even more confusing is the voting line-up and accompanying opinions.
The court split 5-4 on both of parts of its order, with only one justice – Justice Amy Coney Barrett – in the majority in both. …
Altogether, there were a total of five opinions in addition to the order itself, with no opinion joined by more than four justices. And two justices – Justices Clarence Thomas and Samuel Alito – provided no explanation for their votes.
…
Nor does National Institutes of Health itself give clear guidance to lower courts. …… Marks v. United States, long the primary guidance on interpreting fragmented merits rulings – and long criticized for its unworkability. Applying Marks to the minimalistic explanations in a case like National Institutes of Health, much less determining how the case implicates different facts and legal arguments in subsequent litigation, is, at best, like putting together a puzzle with half the pieces missing – and then possibly being called defiant and anarchic for not producing a complete picture.
Steve Vladeck responds to Gorsuch’s attack on lower courts:
the real headline among the five separate opinions filed by the justices on Thursday was the opinion “concurring in part and dissenting in part” filed by Justice Gorsuch, and joined in full by Justice Kavanaugh. In it, Gorsuch accused the lower courts in this case—and in two other cases—of open defiance of earlier rulings by the Supreme Court on emergency applications. More than that, Gorsuch claimed that the Court’s interventions in many of the Trump cases would be “unnecessary” but for bad behavior by lower courts.
…
…Gorsuch’s argument is not just specious; it is affirmatively dangerous—coming at a time when an increasingly popular claim by the President and his supporters is that any lower court ruling adverse to the administration is illegitimate. It would be one thing if Gorsuch had incontrovertible evidence of lower-court defiance. But as I show below the fold, the opposite is true. Instead, the real culprit here is the Supreme Court’s own majority, which continues to hand down thinly (or entirely un-)explained rulings in these cases and expect lower-court judges to read their minds in the face of entirely reasonable arguments for distinguishing the earlier rulings.
LawDork Chris Geidner also has a take in his piece “Trump’s SCOTUS appointees each shared alarming views in allowing NIH grant cuts”:
President Donald Trump’s three appointees to the U.S. Supreme Court each made alarming statements in a single case about federal health research grants last week, particularly when viewed in light of the broader attack on the rule of law in America.
Taken together, their statements in an order on the shadow docket on a Thursday afternoon in August show how understanding the Supreme Court is going to be — and must be — a fundamentally different undertaking from learning law for the near-term future.
That has certainly been illustrated repeatedly over the nearly five years since Justice Amy Coney Barrett took her seat on the bench. But, the August 21 order in a pair of cases challenging the legality of National Institutes of Health guidance that led to the cancellation of research grants across the nation — an order that hinged on Barrett’s vote — really nailed down just how Trump’s appointees are backing the Trump administration in its attacks on the rule of law.
Former Supreme Court Justice Stephen G. Breyer defended the lower court judge:
Justice Stephen G. Breyer on Saturday defended a judge accused of defying a Supreme Court ruling, saying in an interview that he knew the judge to be scrupulously honest and respectful of higher courts.
Justice Breyer, who retired from the court in 2022, has avoided criticism of his former colleagues. He declined on Saturday to directly address Justice Neil M. Gorsuch’s concurring opinion last month accusing Judge William G. Young, of the Federal District Court in Boston, of ignoring a binding precedent.But that opinion plainly prompted Justice Breyer’s decision to step forward with rare public comments in praise of Judge Young as model jurist whose rulings he had often reviewed during his 14 years as an appeals court judge in Boston.
“I never saw an instance where he would deliberately defy a controlling opinion or legal statement from our court or from the Supreme Court,” Justice Breyer said. “I never even had an instinct or a guess or a hunch or anything that he was doing anything like that deliberately.”
Justice Breyer’s comments were the latest indication of growing tensions within the judiciary, as courts grapple with the flood of lawsuits prompted by the Trump administration’s sweeping efforts to remake the government, and as trial judges struggle to interpret the Supreme Court’s emergency orders.
For his part, Judge William G. Young apologized and attempted to fall on his sword:
…the judge at whom the directive was aimed issued an apology from the bench, pledging to adjust to meet the highest court’s demands.
The acknowledgment on Tuesday by Judge William G. Young in Federal District Court in Massachusetts highlighted the precarious position that lower courts have landed in this year as they struggle to make sense of a growing number of unsigned orders the Supreme Court has produced through the court’s emergency docket.
Judge Young said on Tuesday that he had not realized he was expected to rely on a slim three-page order issued with minimal legal reasoning in April to his case dealing with a different agency.
“Before we do anything, I really feel it’s incumbent upon me to — on the record here — to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States,” said Judge Young, who was appointed to the bench by President Ronald Reagan in 1985.
“I can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer,” he added.
A big part of successfully replacing our now-dead Constitutional order will be finding a means to clearly communicate instructions to underlings.
Trump’s Supreme Court may have succeeded in throwing out precedent and law in their rulings for Trump, but they are struggling to convey a method by which lower courts can accurately predict how they are supposed to rule.
Perhaps these struggles explain some of Trump’s recent testiness with the press, via the (possibly wishful thinking) New Republic:
President Trump seems even more angry at the media than usual. His lawyers just filed a lawsuit against The New York Times that First Amendment lawyers are dismissing as a total joke. The suit, however, is also chock full of angry rants that appeared dictated by Trump himself. And he announced it with a Truth Social tirade that boiled with fury. Meanwhile, Trump himself snapped directly at reporters in strange ways, hitting one with a bizarre threat and engaging in a bizarre dominance display over the other. This comes as a new poll from The Economist reveals shockingly low support for Trump among independents, a key metric for gauging political strength—or weakness.
It’s one thing to tip over a rotten old order, it’s a much bigger challenge to impose a new order.
Here’s hoping that Trump is the American Marius and not the American Sulla, much less the American Julius Caesar or Augustus.
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I’ll have to re-read the above. But just to be clear almost all of these decisions will need final rulings that will indeed require justification, no? So perhaps some discussion is in order about the hurry up challenge to the existing order that came on Trump’s first day, and how this is doubtless a deliberate strategy to overwhelm the courts.
So is the SC really going to rubber stamp Trump’s absurd seizure of the tariff power on flimsy grounds? Perhaps what is unprecedented here is not the tolerance or, Dems would say, corruption of the higher court but the brazen way the Trumpies are defying precedent. And this is something which seems to be a bluff since when the courts do rule against them they comply while appealing.
Just asking.
There is something peculiar here. As far as I’m aware, rather few of the free trade agreements that we have have entered into are actual treaties, meeting Constitutional muster. However, they have generally been accompanied by enabling legislations that passed both Houses, although I’m not sure how many of them were ecplicitly viewed ftom revenue perspective, although, in those cases, giving up revenue rather than raising it.
Trump’s antics, of explicitly setting, or at least, claiming to the specific tariff rates for different goods does raise big questions, both Constitutional and political (the actual politics of tariff when it was really big deal, 19th century through pre WW2 days were extremely intricate when it came to gettingvthe details done–I shudder to think what if anything is being done in their place). However, the inverse of non-treaty free trade deals, insofar as they take the legal form of “restoring” existing tariffs (Smoot Hawley? I think it is still the official tariff leg in absence of the free trade agreements, mfn status, etc, via exec fiat) by suspending their removals (or whatever) does seem to meet Const req.
Pls tell me if I’m confused, which is quite possible.
Napolitano says that the across the board tariffs–not targeted to a particular import or industry–are a form of taxation and only Congress has the permission to impose taxes.
Surely the crux of much of this is Trump’s Repub majority in both houses. It’s not the SC but Congress that is supposed to provide the balance of power against a rogue president. Some of us have always questioned the notion that the high court is tasked with saving the public from their own represntatives. As Yves keeps saying we would have legal abortion if Congress has simply so decided back when a majority and sympathetic president were available.
So in a sense Trump’s very weird second term is more a filibuster than a plan. Alastair Crooke says the same applies to Ukraine and his foreign policy.
Bingo! “Trump’s very weird second term is more a filibuster than a plan”
I could go into the impotence of the congressional branch, which is also down to its financial corruption, but had more than enough for a post without it. All 3 branches must function for the US Constitutional order of 1791 – 2021 to work.
I’m afraid I’ll have to defer to someone (anyone) else on the legal issues.
My point in the post is a simple one: the pro-Trump majority on the Supreme Court appears to expect lower court justices to not only follow their lead but also to anticipate how they will rule or face allegations of “lower court insubordination.”
It appears Gorsuch and Kavanaugh expect lower court judges to abandon existing case law and rule on more of a vibes-based basis.
For the purposes of this post, “corruption” refers to the Supremes brazenly defying precedent to advance Trump’s agenda as much as their bribe taking.
The point is they’re not even bothing to set up a legal precedent that will give lower courts a clear guidepost.
They’re winging it, and they seem to expect lower courts to improvise in tune with notes they haven’t played yet.
It’s like trying a conductor expecting the orchestra to play perfectly when they haven’t passed out the sheet music and refuse to even take the baton and step up to the podium.
My point is they are very far from creating a bold new post-constitutional order, in fact, I’d argue that there can be no coherent legal framework for fascism.
But it will take some time for that new reality to trickle down to the lower courts and for the latter to learn to anticipate the needs of the arbitrary new order.
Yes but they do have to rule eventually and “play the notes,” right? I know at least one recent rejection was a punt based on “standing.”
I’m not a lawyer either but question the idea that they are sucking up to Trump for any reason other than pre existing ideology. They have lifetime appointments. If he doesn’t like their rulings what’s he going to do?
There is reason to believe however the the court responds to public opinion. Perhaps if there was some opposition party making noise about all this–not just sending fund raising emails.
I believe you are right, but their pre-existing ideology appears to be “let’s have a monarchy,” and in absolute monarchies, there is not as much use for legal niceties.
They are not kowtowing to Trump per se, they are running with their dream of giving the executive branch complete impunity.
As a lawyer, I have to say it’s not hard to understand how to rule in these cases at all. When the Trump administration appears in a case, you suck up. That’s it. The current Supreme Court does not even bother to make legalistic excuses like the Supreme Court did in the past.
To a large degree they can’t. Hence the courts frustration with lower courts “defying” their rulings. Laws are complex and while Trump may be a bull in a china shop, legal ruling sweeping the pieces under the carpet doesn’t change the fact that the whole system is set up to stop bulls in china shops. Absent new legislation from congress (a fantasy for anything outside of Israel for the foreseeable future), the courts can only rely on clear precedents, most of which were decided and relied on to oppose the capricious whims of the likes of the present political class.
I am a lawyer, although not primarily a constitutional lawyer. As best I can tell, there are exactly two rules in U.S. constitutional jurisprudence.
The first is what I call the Rule of Juice – you need political juice to get the Supreme Court to take your case. Political juice can be because your case is a good example of a hot political topic, or it can be because your name is Trump.
The second is called the Rule of Five – you need five votes to win if you get to the Supreme Court.
That’s it. That’s American constitutional law. Everything else is just excuses to try to preserve legitimacy. And that’s not new with the Trump administration.
Heavy use of the shadow docket is sort of new, and it allows the Supreme Court to make political rulings without bothering to write complicated excuses. It appears to me that judges at all levels are in a panic because people are less and less willing accept their legitimacy these days. The Supreme Court making baldly political decisions without bothering to make excuses does not help.
Yes, I trace the real decline to Bush V Gore in 2001. Not that it was ever a legal paradise.
Bush v Gore was eye-opening for me, but the conservatives were not entirely wrong when they complained about liberal emanations and penumbras during the 1960s and 70s. .
schmittian gish gallop.
ie:move fast and break things, and hope nobody digs too deep, being busy with all the other manufactured chaos.
its really a fitting end-state for this decrepit imperium.
“Our now dead constitutional order.”
I would propose an alternative interpretation of our present constitutional order.
Try thinking about our constitution as primarily a document of absence and emptiness rather than one filled with specifically directed and fully elaborated content (for example the concepts of separation of powers, checks and balances, and federalism are nowhere spelled out in our constitution).
Such constitutional emptiness seems to function as an almost implicit attempt to guarantee the longevity of our country.
Maybe our constitution creates a space for the process of continuous state-building (by red, blue, or whatever) because of some kind of realization about the uncertainty of the human condition and the fact that none of us know for sure.
In the piece I was referring to the de facto practice of separation of powers, checks and balances, and federalism which has characterized our previous order, not trying to have a debate about constitutional law.
One practice which you didn’t mention was the peaceful transfer of powers, a tradition established by George Washington at the end of his 2nd term, which was also not enumerated in the Constitution.
I’d argue that after the US Congress failed to convict Trump, after impeaching him for Jan. 6, and Biden happily waited until Jan 21 to be inaugurated, that the peaceful transfer of powers tradition ended.
And because all other law and order rests on a foundation of force, the old order was dead from that moment on.
Trump’s re-election made it undeniable and now the Centrists are trying to accommodate themselves to this now apparent new order.
Sulla was a dictator for a time, and pretty nasty, but he did voluntarily retire. If we’re making comparisons to Romans, I still say Trump is the American Domitian.
As far as being in a post Constitutional order goes, I’m not sure we’re quite there yet, but it is also admittedly difficult to keep track of all that’s going on with Trump’s gish gallop of Constitutional challenges, so thank you for this post giving a rundown. I’d just point out that Trump’s dictats are still being challenged in court. The Constitution requires a judiciary, but it does not require that we all like its decisions. And while obviously some justices are more even keeled than others, I’d argue that the SCOTUS has always been political, despite its claims to the contrary.
I’m not a legal scholar, but others who are have argued that the court arrogated power to itself that it shouldn’t have with the Marbury v. Madison decision that established judicial review and allowed the court to strike down laws it found to be unconstitutional.
All that being said, I’m rather appalled at the lack of any real political opposition to any of Trump’s 2nd term overreach. The recent claim that visitors to the US can be denied entry for criticizing Israel, or Charlie Kirk, or whoever is on the list is particularly galling, but I also imagine it’s difficult for the “liberal” opposition to do much here considering they tried to silence any number of people themselves in recent years. But sitting around with their thumbs crammed up their posteriors isn’t going to win them any votes or save “our democracy”, and yet that is the strategy they’ve settled on. One gets the impression they are just waiting for the current occupant of the White House to be gone one way or the other and then they will get to enjoy the same power Trump took for himself. Some of us warned years ago that it wasn’t a good idea to let Obama get away with assassinating US citizens, for example, since some future president the Democrats don’t like as much might do the same. Both parties cheered the fake Venezuelan president Trump brought to DC his first term, and now he’s blowing away Venezuelan boats (maybe – still no actual proof that I’ve seen) on his say-so alone, just like Obama.
If we are truly post-Constitutional, it has been a very bipartisan effort to get us there, and nobody in a position of power acts like they really want to stop it.
Domitian is way into the Empire, though. I’m concerned that our Republic is over, not that the Empire is having a nasty period.
I anticipate Trump will voluntarily surrender power, choosing instead to heavily put his thumb on the scales for his chosen successor’s election in 2028.
I do believe the ruling powers still find elections a useful way to legitimize themselves and also take the pulse as it were, even if they also like to influence said elections beyond the point of ridiculousness.
And the destruction of the Constitutional order has 100% been a bipartisan project. The Democrats have fixed the last three presidential nominations so they have no leg to stand on when they claim to be “defending democracy.”
>>>Domitian is way into the Empire, though. I’m concerned that our Republic is over, not that the Empire is having a nasty period.
Unfortunately, I am not as knowledgeable about the Roman Empire as I am about the Roman Republic.
However, I do remember that the transition from the Republic to the Empire was a long and messy one that had over a century of increasingly useless and bloody conflict, involving the almost literal extermination of the Roman Republic’s elite families or clans. By the time Augustus won because there was almost nobody left alive with any real power, the entire population was essentially anti war and was willing to accept Augustus’ somewhat thin justifications for his reforms. He did keep the notational political forms while transferring all the power to himself, the emperor who was officially not an emperor. He also was a good administrator as well as a reformer, which created both peace and an economic boom, which also encouraged the general public acceptance throughout the empire of the changes.
The switch from Augustus’ creation of an empire, what can labeled the Principate, to the Dominate three centuries later, which could be seen as the switch from the first among equals to dictator, also changed the political structure from fairly defused and lawyerly to centralized and authoritarian; the change in governance also ended the regular thought or study of politics, which was like our study of American political economy based on the Constitution and the Bill of Rights. Even during the Principate, the past was a strong base for the law and politics. In the Dominate, not so much.
That is not to say the thought about politics ended, but the hobby of studying or the scholarship of Roman history and law, much like we do today with American history and law using the practical base of Constitutional thought and practice, went away.
The American political philosophy is based on the Declaration of Independence, the Constitution, and the Bill of Rights, along with all the history, traditions, and thoughts of four centuries of American history as well as centuries of British/English history. This makes studying American political philosophy fascinating, fun, and practical. If we switch to even a first among equals, never mind a rule by a strongman, what is the practical point of studying American political philosophy? And since the entire American political and social system is based on the ideas in the Declaration of Independence, the Constitution, and the Bill of Rights, if we convert the presidency to a dictatorship, which would enable, even encourage, the same at all levels of government, what would keep the Republic of the United States from fragmenting and going into civil war?
Just as the gradual destruction of the Roman Republic’s political system for the benefit of the increasingly wealthy Senatorial class to the cost of the general population especially the small independent farmers and businesses that had been the country’s foundation for its economic and military strength, led to increasing levels of violence in the century before the fall of the republic, I can see the same process here happening in the United States. And there were plenty of Romans who were warning about the process as it was happening.
The real difference between the two examples is that Rome still had capable leadership despite most of their families being dead from the assassinations, proscription, and wars, whereas almost all of the American (and European) leadership seems increasingly not only incompetent and corrupt, but just plain stupid. The Roman elites were also corrupt, but not as insanely, stupidly inept, if for no other reason than the previous five generations had to have some competence just to survive the increasingly brutal, ruthless, and lethal political struggle. This is a depressing thing to realize.
I would not be shocked if we don’t power through from the Republic right into the Dominate, skipping the Principate, if we aren’t already going through a joke of an abbreviated American Principate, because Americans can be special in that way. When we fvck up, we tend to do it better than others.
great comment, I see the Domitian angle now. If you posit that Truman was the first emperor, then maybe we’ve compressed 3 centuries of political decline into 80 years.
Best parts:
Not much.
other fave:
I’ll say.
But maybe elite incompetence is a hopeful sign. They won’t be able to pull off a clampdown if they can’t keep their tallywackers out of their zippers.
The Roman senatorial elites, under the party of the Optimates, did do a lot of assassinations of the leadership of the Populares starting with the Gracchus Brothers in the early second century BC, to block even the mildest of reforms, which included improving efforts to enforce the laws already on the books. After a few decades of that, the populares started doing the same.
The nutty thing was that the elites were never threatened with losing their wealth and power at least at first. They were only threatened with being unable to have it all. The goal of every Roman was to join them or at least eventually their family once they had been wealthy and respected long enough. But with the increasing back and forth revenge, often senseless violence, and breakdown of all the laws, customs, and traditions, turned politics from a fierce, often brutal, but still safe competition to warfare under another name especially after Sulla’s Proscriptions. I’m sure that the general thought he was preventing any future conflicts, but he killed enough people to make everyone terrified, but not enough to make everyone submit. And threatening a man’s family and friends just makes it worse. Even if you don’t particularly want to be ruthless for your sake, what about everyone else who you know? Even some of your family slaves? How ruthless would you be for their sake?
People started to go into politics just to survive and protect not only themselves, but also their families, friends, followers, sometimes even their personal slaves, from retribution or just murder and theft, or just enslavement for profit. Sometimes someone with connections (and money) would get an innocent man killed, his family sold, and his business sold to them. I read of two examples where someone wanted a man’s business and other wanted a man’s wife, and of course the victims had no idea that they were proscribed. IIRC, one poor man walked into the forum and was killed completely by surprise because there was no reason for him to be worried. But he was either the man with the wife or the man with the business that the connected individual wanted.
It’s not strange that eventually people started to preemptively, or at least enthusiastically, defend themselves, which is how we got to Augustus winning after defeating Cleopatra and Mark Anthony because almost everyone else was dead. He was the last man standing.
So, we go from some mild reforms needed with corruption and multiple assassinations used to block them to eventually open civil wars with most of the elites not only losing their wealth, but also their lives, not to mention everyone who were their families, friends, and allies, often getting killed or enslaved.
And to think that Julius Caesar crossed the Rubicon with his personal army partly because of the many lawsuits being filed by his enemies due to him losing his immunity to legal actions after he lost an election; by then it had become normal to ruin people using the law aside from the violence and assassinations. After seeing the Democrats and President Trump abuse the law both for political purposes and petty revenge, I guess I understand it better now then when I first learned about why Caesar went to war.
I bring this all up because of the long history of American assassinations of politicians and political reformers and lately of whistleblowers. The legal actions of the past few years by politicians against their opponents and the press kind of rhymes with the past, doesn’t? It’s likely a stretch, but I have read too much history especially of the Roman Republic and of the American Civil War to not make a comparison.
Great comments. When I read about the period of civil wars in Rome, I would wonder how anyone was left alive. Augustus as the last man standing makes a lot of sense.
I used the example of Domitian because I do think the US has been an empire for a while. While Augustus used to pretend the Senate still had a say in things, Domitian largely dispensed with the niceties which really ticked the Senate off until they eventually had him murdered. The Roman elites weren’t exactly sure what to do then, so they made Nerva emperor, an older man who had been in government a long time and knew how things worked, and since he had no sons, he was largely a placeholder until they could could up with a better plan.
Biden was the USian Nerva. Unfortunately the Democrats never did come up with a better plan.
FDR is probably the good analogue to Augustus, if we go in this direction. Since he is remembered as a “good emperor,” we just don’t want to think of the history that way.
I’d see FDR as Julius, Truman as Augustus. He’s the one who instituted the three letter agency after all.
I still want my bananas in the banana republic. Oh and a supply of weekly entertainment, readily available on the idiot box so I can gamble my weekly paycheck on the games of the week! \sarc
I had to actually check last week, and my home state of South Carolina has yet to approve or allow legal sports betting. There are not many states that still exclude it. Instead of betting on actual lions I’ll have to imagine my winnings on those Detroit Lions instead. Or the Lions, the Tigers or the Bears oh my if you will !
Bread and circuses….just no bread.
Just be glad we don’t still have blue laws. Long ago stores had to close on the “day of rest.” Now you can even buy beer on Sunday but may turn into a pillar of salt.
Myself since I don’t gamble I’m all for banning it. Smoking too. Must be the Baptist in me.
‘Sulla was a dictator for a time, and pretty nasty, but he did voluntarily retire.’
That was part of the job description. Rome realized that from time to time problems would arise that the ordinary machinery of government could not deal with. So a magistrate was appointed with extraordinary powers who would deal with this problem, adjust the machinery of government and then quit.
https://en.wikipedia.org/wiki/Roman_dictator
Sulla went way beyond previous dictators and IMO did more to destroy the Republic than Caesar.
The “shadow docket” has come up a lot these past years, for good reason.
US Supreme Court’s shadow docket attack on the Constitution (WSWS)
Thank you. But that “glacial process” does still happen eventually, right?
Trump may be on thinner ice than we know. Next he may ban the word Epstein.
Trump’s Dominance displays are becoming increasingly bizarre and more frequent.
And that is a trend that is likely to continue.
It took a long time before Biden’s incompetence was publicly acknowledged and I expect it will take some time before most people admit that Trump has become completely unhinged.
“This is even true in a post constitutional [order] period such as the United States in the fall of 2025.”
Hey Nate, it sounds/looks to me as if you had a choice or decision to make about how you presently view our constitutional order as shown in your printed statement above with the crossed-out word “order” and your substitution of the word “period.”
Is it fair to say that you decided on the use of the word “period” as being presently more accurate than the word “order” and that this choice took place on the level of language? And, consequently, that there necessitated a decision on your part to choose which word was best (or in your opinion most accurate) to use.
Is it the case that for both you and me that there often has to be a decision on the level of language to have a problem in the first place and that neither of us is actually dealing with reality but rather with an antecedent choice about which words to use to describe that reality?
Taken this possibility, I have come to the conclusion that the language of problem identification is mostly metaphoric. It doesn’t necessarily reflect a situation that exists independent of our language formulation.
I was trying to make a point that Trump has not instituted a new order.
However, the current American predicament is certainly not something that exists only as a language formulation issue.
Trump may be too chaotic to impose a new order, but I feel his successor will not be.
Thought exercise:
1. How many of the really powerful are personally loyal to Trump or even like him?
2. Would they, at the appropriate time, prefer a more orderly and focused fascist (the avuncular seeming JD Vance)
3. When will Trump outlive his usefulness to these powerful men? (By which I mean his chaotic effects outweighing his furthering of the fascist order)
4. What will the sociopath-fascists do then?
My 2c: almost zero, yes, within a year, arrange a “Marxist trans assassination” and use it to really crack down on.
Agree there although I’m not sure that Vance will have the mojo to lead.
I hope you’re right, although I think he’s stronger and more ruthless than his scruffy Dad facade suggests.
My assumption is that he’ll be more “frontman for the consortium” than traditional leader. He will understand his place, as a prince /duke not a king.
Also, thanks for your continued excellent writing – much appreciated!
“My assumption is that he’ll be more “frontman for the consortium” than traditional leader. He will understand his place, as a prince /duke not a king.”
I’d note that this is pretty much what was expected of Putin when he first came to power. It did not quite work out that way – certainly not for the oligarch who seems to have had the most to do with his elevation, Berezovsky. Perhaps it will play out differently in America, though – its oligarchs are stronger, more entrenched and experienced, and also Vance does not have a security state background and is more dependent on Thiel (although… not more than Zelensky was dependent on Kolomoisky, who also did not get his money’s worth there). On the other hand, an increasingly powerful president might still outwrangle the oligarchy when relations sour. And a “puppet” at that level of power seems almost bound to come to blows with the “puppetmaster”.
Nat, appreciate your digs into disfunction>
your articulateness and pursuit of the current state of administrative theatrics compelling
i fervently hope that the utter incompetence/covidbrain/hypersolipsism/mirroredbubblehubris we see all over the upper tiers(not just trump) will make my worst fears unobtainable.
ive long reckoned that the best we can hope for is an idiotic balkinisation….with local warlordism filling the vacuum>
What will Peak Corruption look like?
How far down can it go?
How many of those, who have something to lose, are fleeing the USA?
I hope more topic tags are going to be added to this post. Guest post is the only tag here now, and that seems a very incomplete description. @nat Wilson turner