The Assault on the Rule of Law
It is not hyperbole to say that this Trump presidency is unprecedented in the repeated violations of the Constitution.
As I reflect on what President Donald Trump has done in 2025, I realize that we should be thankful that the United States had made it this far without a president who was a demagogue with no commitment to obeying the law or norms. But never having faced anything like this before means it is uncertain whether the guardrails of our democracy will hold. It is not hyperbole to say that this Trump presidency is an unprecedented assault on the rule of law in the repeated violations of the Constitution, in the efforts to aggrandize unchecked executive authority, and in the open use of power for retribution.
The list of clearly illegal acts is long and chilling. The military is being used for domestic law enforcement in violation of the Posse Comitatus Act. Masked Immigration and Customs Enforcement agents are stopping and apprehending people without reasonable suspicion that they have committed any crime. An executive order has greatly restricted birthright citizenship despite language in the Fourteenth Amendment that makes everyone born in this country a United States citizen. The Alien Enemy Act of 1798 has been used to deport people even though the law applies only if there is a declared war or an imminent invasion. In violation of the First Amendment, visas have been revoked and people have been detained based on their speech. Billions of dollars of funding, including to researchers and universities, has been terminated without any legal authority and in violation of the Constitution and federal statutes. Those on boats suspected of drug trafficking have been murdered in violation of international law that prohibits such “extra-judicial” killings outside of a war.
No president has sought to expand executive power as we have seen in the past year. No prior president has claimed the authority to fire everyone in the executive branch, even when there are laws limiting removal. No prior president has sought to eliminate federal agencies created by Congress and that only should be able to be abolished by act of Congress (though Richard Nixon did take steps to close one agency). No prior president has claimed the authority to impose billions of dollars of tariffs without any legal authority to do so.
Trump has openly and shamelessly used power for retribution. Executive orders that imposed draconian sanctions on law firms were explicit in stating this as their rationale. For example, the law firm Perkins Coie was subjected to severe punishment because it represented Hillary Clinton in 2016. Other law firms were punished because they employed Robert Mueller or members of his staff. The prosecutions of James Comey, Letitia James, and John Bolton are all about retribution. Those responsible for the January 6 insurrection were pardoned while those who prosecuted the crimes were fired.
In doing all of this, Trump has been contemptuous of the rule of law. He wrote on social media, “He who saves his Country does not violate any law.” At a televised Cabinet meeting on August 26, Trump, discussing the ability use troops for law enforcement, said, I have “the right to anything I want to do. I’m the president of the United States.”
With over three years to go in the Trump presidency, the crucial question is whether there will sufficient meaningful checks to uphold the rule of law. No one realistically thinks that those around the president – not Defense Secretary Pete Hegseth, not Attorney General Pam Bondi, and not FBI Director Kash Patel – will restrain him.
Nor is there any indication that Congress will do so. Perhaps that will change after the mid-term elections in November. And even if Democrats take one or both houses of Congress, anything they pass can be vetoed by the president.
Ultimately, if the rule of law is to be upheld, it will be for the courts to constrain the president and enforce the Constitution. But the pattern so far has been deeply disturbing. In case after case, federal district court judges – appointed by both Democratic and Republican presidents – have found Trump’s actions unconstitutional and have issued preliminary injunctions. The federal courts of appeals have upheld many of these orders. But more a dozen times, the Supreme Court has reversed and ruled in favor of the president.
Virtually every one of these rulings has been 6-3, often with little or no explanation, and over the blistering dissents of Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Some of the more high-profile cases have involved the Supreme Court overturning lower court orders preventing the president from barring transgender individuals from military service, from firing agency heads in a manner prohibited by federal law, from having Immigration and Customs Enforcement agents stop individuals without reasonable suspicion, from cutting off hundreds of millions of dollars of National Institutes of Health money for medical and scientific research, from deporting individuals to South Sudan. A court ruled that the government did not ensure that the migrants would not face torture or death.
In addition, in June, in Trump v. CASA, the Supreme Court ruled, again 6-3, that a federal court no longer can issue a nationwide injunction when it finds a presidential action to be unconstitutional. In her opinion, Justice Amy Coney Barrett said that federal courts lack this power because the High Court of Chancery in England in the 18th century did not have such authority. But as Jackson said in the dissent, this approach makes no sense in deciding the power of federal courts to check the president because no court in England could enjoin an action by the king. The court’s ruling will make it much harder to stop an unconstitutional presidential action. It appears that a president can continue an unconstitutional action until every federal district court rules or the Supreme Court decides.
All of this makes me more worried for the fate of American democracy than I ever have been or could have imagined being. As we look to 2026, the most important question is whether the Supreme Court will finally recognize the unprecedented dangers to the rule of law posed by the Trump presidency and begin enforcing the Constitution. Or will it just be a rubber stamp approving every action by Trump? What then for our constitutional democracy?
Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law.
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We were once a nation that faced problems, not kicked them down the road to never be addressed. I think the issue lies with Congress, which could do much to solve so many of them--Supreme Court corruption and imbalance, the integrity of the healthcare system, tax inequality, etc.
I read that elected representatives in other countries receive the same healthcare benefits as ordinary citizens, not free benefits for life. So many perks of the office encourage just hanging onto the job, not rocking the boat, and never trying anything risky or hard. This week, Republican Rep. Nancy Mace's NYT article "What's the Point of Congress?" and Sen. Adam Smith's talk with Jen Rubin on the Contrarian (https://contrarian.substack.com/p/venezuela-western-dominance-and-regime) revealed just that: that Congress now does next to nothing that is proactive or addressing actual needs in Americans' lives. But the members sure have nice jobs and no reason to leave. Yet, there are well-intentioned and excellent ones, such as my Rep. Maxine Dexter and Sens. Wyden and Merkley.
If we want to fix anything, we must start with Congress.
Should we ever elect a Democratic president again, or perhaps even a sane Republican one, serious consideration should be given to using the current MAGGOT court rulings and new precedents to upend the court (replacing all the partisan activists in black robes), reverse the courts most egregiously undemocratic rulings (Citizens United, Trump vs USA, Roe v. Wade, etc.) and revoke the citizenship of Don the Con, his family and cronies as 'traitors and enemies of the state'. Two can play the game the rethuglicans are playing now, but it could be done with greater finesse and justification to undo all they are doing.
Once completed. and taking a page from our first president, step down into the role of an Executive empowered to 'faithfully enforce' the laws passed by a more balanced Congress!