In law school, my property professor valiantly attempted to startle us out of our 9:00 am torpor with the provocative question: Does the law matter? His point, as I recall, was that legal rules are usually just a reflection of social customs and norms. The norms can safeguard property rights even without the law; conversely, if the law is unsupported by social norms, it won’t suffice.
I thought of this recently, after posting a Twitter thread addressing a draft executive order of unknown provenance obtained by the House Select Committee to Investigate the January 6th Attack on the United States Capitol. The order, which was never executed, directed the seizure of voting machines under the International Emergency Economic Powers Act (IEEPA). My thread explained why IEEPA would not have authorized any such action.
The thread received its share of “likes” and retweets—but also a number of caustic replies, all centered around the same theme. Some examples:
- Because coups always abide by laws. #butterknifetogunfight
- In what world do you live in? [sic]
- As @sarahkendzior says, of course it’s against the law. That’s why it’s called a COUP! Something written on a piece of paper does not stop a coup. Once he seizes the machines, assassinates his opponents and declares martial law, he makes/enforces whatever new law he wants.
- Stunningly naïve. Those intent of seizing power illegally are unlikely to be further deterred by legal technicalities. . . .
- You do understand that the entire point of doing a coup is that it doesn’t have to be legal right? The fact that this is still the lense [sic] we’re considering this by means we’re so f[***]ing screwed.
In short: Anyone who thinks the law will prevent Trump and his supporters from subverting our democracy is not only hopelessly deluded, but living proof of why we’re doomed to lose the fight.
My first reaction was annoyance at what seemed to be a willful misreading of my words. I get that military coups are, by definition, illegal. I never suggested that laws prevent lawlessness, or that the bounded scope of IEEPA means we’re safe from a presidential power grab. My point was simply that IEEPA doesn’t authorize that power grab—and further, that no existing emergency powers would authorize the undoing of an election, despite their broad reach and significant potential for abuse.
On reflection, though, I realized that there is a legitimate question underlying these comments, and it merits a substantive response. Why do I bother to think and write about emergency powers—which are, after all, legal authorities—if the president and his supporters don’t consider themselves bound by the law? In the fight to prevent the subversion of our democracy, does the law matter?
For now, at least, I believe the answer is yes. I don’t dispute that Trump would have done anything in his power to hold on to the White House, whether legal or illegal. But there’s a reason someone took the trouble of crafting an executive order that cited IEEPA. At a minimum, the author believed that such an action would need legal “window dressing.” That’s reason enough to tear the dressing off the window.
But I would go further. Those who claim that laws cannot constrain a would-be autocrat from seizing voting machines are ignoring the fact that Trump did not, in fact, seize the voting machines. If there were a law that actually authorized such a seizure, does anyone seriously doubt that Trump would have availed himself of it? The law mattered, not because Trump has respect for the rule of law (he doesn’t), but because it presumably affected his calculus—or the calculus of those around him—of what he could and could not get away with.
Part of that calculus involves the courts. I noted in my Twitter thread that even Trump-appointed judges would have been forced to strike down such a blatant misuse of IEEPA. My Twitter critics were incredulous. How could I be so naïve? Trump judges will uphold anything Trump does, and there’s no way this particular Supreme Court would stand in the way of a Trump-led coup against democracy. Alternatively, if the Court did try to block him, he would stage a military coup.
In fact, we don’t have to speculate about whether today’s increasingly conservative judiciary would reflexively bless a Trump power grab. Trump and his supporters brought more than 60 lawsuits to challenge the results of the 2020 election. All but one was rejected; among the 86 judges who dismissed the lawsuits were 38 appointed by Republican presidents, including eight appointed by Trump. The challengers asked the Supreme Court to reverse these decisions, and the Court—which includes six conservative justices, three of whom were appointed by Trump—repeatedly refused.
I’m painfully aware that the bench is growing more conservative and—worse—more political. Trump’s appointees to the bench, in particular, were chosen largely for their (anticipated) loyalty to the president. But it blinks reality to say as a categorical matter that the law doesn’t matter to conservative judges, and that a conservative court will always rule in favor of conservative politicians regardless of what the law requires. That could have happened here, and it didn’t.
Something else didn’t happen: a coup. One of my detractors dismissed the notion that the law had anything to do with this outcome, arguing that “Trump’s coup failed because he didn’t have enough support among others in power.” I agree that a coup might have happened if it weren’t for key government officials, including Mike Pence and top military leaders, refusing to be a part of it. But what motivated those officials? Just a personal dislike of Donald Trump? To be sure, some of them had previously supported administration policies that the courts deemed illegal. But when it came to the survival of our democracy, they were unwilling to shred the Constitution and abandon entirely the rule of law. On that core question, the law mattered to them, even if it didn’t matter to Trump.
On some level, my Twitter hecklers understand all this. I couldn’t help but notice that some of them had tweeted in support of the Voting Rights Act. If the law didn’t matter—if officials bent on voter suppression would do whatever they wished regardless of the law; if anyone on “their side” of the political divide would support and assist their illegal efforts; if the courts would strike down any legislation purporting to stop them—there would be no point in passing legislation to protect voters’ rights.
To be clear, the rule of law is under threat. Across all sectors of our democracy, an increasing proportion of the players don’t care about what’s legal. The political left is not immune to this phenomenon, but thus far it’s largely a malady of the right—afflicting officials in all branches and at all levels of government, as well as the wider American population. At some point, we could reach a tipping point where the law loses its ability to act as a constraint on political action. We’re not there yet, but we’re getting frighteningly close.
That’s exactly why democracy’s supporters should care what the law says. If we shrug our shoulders at questions like whether emergency powers do or don’t authorize the subversion of democracy, how can we possibly expect those in positions of power who are facing massive political pressure to ignore the law—people like General Mark Milley, or Judge Stephanos Bibas, or Representative Liz Cheney—to overcome that pressure and stand up for the Constitution?
Of course, law isn’t the only thing that matters—not by any stretch of the imagination. Preserving our democracy will require political activism, speaking out loudly and boldly, voting as if our democracy depends on it (it does), taking to the streets in protest when democracy is undermined. But one of the things that undermines democracy most is disregard for the rule of law. Such behavior should be one of the things that drive people to the streets—not something to which we turn a jaded eye, priding ourselves on our worldliness.
We cannot let Trump’s view of the law determine whether the law matters. That’s doing his work for him. We’re at an extremely tenuous historical moment, and if we don’t choose to fight for the rule of law, we could lose our democracy. The notion that we can afford to concede this ground is… well… stunningly naïve.