When President Donald Trump floated the idea of postponing the upcoming presidential election, my social media feeds exploded with howls of “authoritarianism” and “fascism” and “toldya so.”
More bark than bite
I think we can all agree that the president has at least some authoritarian tendencies. But as presidential scholar Gene Healy recently said, “the 45th president lacks the competence, self‐discipline, and functional attention span to bring his worst autocratic impulses to fruition.”
Time and again, President Trump’s bark has eclipsed his bite. He has claimed – and only claimed – the unilateral power to pardon himself, to end birthright citizenship, to evacuate companies from China, to quarantine three states, to force states to reopen, and to impose federal police against state wishes. After all, he believes the presidency’s “authority is total.”
These were all words, not actions. And when it comes to dictators, that’s not so bad.
What about immigration?
Of course, there is one great exception for our rhetorical-authoritarian-in-chief. When it comes to immigration, the president’s violations of individuals’ rights and liberties have consistently matched his rhetoric.
His presidency began with a travel ban on certain nations, and his current term is concluding with a world-wide travel ban. Across nearly all categories of migration, Trump has rendered the process more difficult or impossible. Although he may not have his big beautiful wall on the southern border, he has implemented a wall of red tape to keep immigrants out. Immigration application denials have increased consistently and are up 80 percent overall. He effectively ended asylum for most of the world by restricting it from those who traveled through other countries on the way to the United States. When he doesn’t get his way rapidly enough, he relies on the pretext of emergencies or crises to limit immigration. His showcase policy, the border wall, represents the violation of thousands of individuals’ property rights. In imposing conditions on funding for local governments that provide varying levels of “sanctuary” for noncitizens, he has disregarded federalism and separation of powers. His administration has even targeted immigration activists – even if they are citizens.
For immigration attorneys like me, every week presents a fresh challenge from the administration to the rule of law. Why is this? Because the president’s authority is almost total over immigration. The courts have made it so, because they have deferred to the president’s discretion over national security since the second World War. Immigration simply falls into that category.
Ironically, the joke is now on the Supreme Court, because the Trump administration believes it can even ignore the Judiciary’s decisions over immigration. Before the ink dried on the Court’s recent ruling reinstating the Deferred Action for Childhood Arrivals (DACA) program, which the Trump administration had previously rescinded, the administration decided it could deny new DACA applications. In other words, the Supreme Court said, “no you can’t,” and the Trump administration said, “yes we can.” Such blatant disregard for the authority of a coequal branch is a step in the direction of what James Madison would call “the very definition of tyranny.”
A warning, not a guidebook
So yes, let’s recognize that President Trump has exercised his nearly limitless power over immigration. And yes, if you’re anything like me, that is a very important fact. However, it is hard to avoid noticing that most of his other authoritarian pronouncements have been duds.
Therefore, the greatest danger we face from President Trump is not Trump himself, but his legacy. Just as Trump merely improved upon the “deportation machine” his predecessor constructed, and utilized the emergency powers that generations of politicians have produced, a more competent authoritarian may one day build on the President’s twitter pronouncements, and actually, say, postpone the election. As with immigration policy, the only thing standing in the way are a handful of robed men and women.
Two years ago, political scientists Steven Levitsky and Daniel Ziblatt lamented, “Behavior that was once considered unthinkable in American politics is becoming thinkable. Even if Donald Trump does not break the [norms] of our constitutional democracy, he has increased the likelihood that a future president will.” May the ghost of James Madison forbid it. Let this presidency be a warning, not a guidebook.