Just 100 days into Donald Trump’s second term, some wonder if the US faces a constitutional crisis. But Yale law professor Samuel Moyn tells Jacobin that, rather than resisting authoritarianism, the courts have enabled Trump’s rise.
One hundred days into Donald Trump’s second term in office, it is clear that he is acting with a greater sense of purpose than he did during his first. Not only has he pursued a reactionary anti-immigration agenda, but he has also used executive power to upturn the global free trade order through tariffs and launched an assault on higher education at home. While the goals of these actions remain unclear, many have begun to question whether he is testing the limits of the United States’ constitutional order.
Daniel Bessner spoke to Samuel Moyn, a professor of law at Yale and the author, most recently, of Liberalism against itself: Cold War Intellectuals and the Making of Our Times, about the helpfulness of describing Trump’s actions as engendering a constitutional crisis. Talk of a constitutional crisis, Moyn argues, relies on a rose-tinted view of US history. Concentrations of power within the presidency have been the norm, and the courts have more often facilitated, rather than halted, the executive’s reactionary actions. To defeat Trump, liberals and the Left will need to come up with a political, rather than legal, strategy.
- Daniel Bessner
-
What do you see as being the major points of interest for Trump in his second term? Obviously Trump has put the institutions and subjects that have become the focus of the culture war in his crosshairs — the Department of Education, “DEI,” “radical left lunatics,” and the like. Do you see a method in his madness? Or is it, as it sometimes has been, difficult to identify a strategic logic behind Trump and his administration’s actions?
- Samuel Moyn
-
I think there is the barest hint of a rational end in his attempt to serve the American victims of militarism and neoliberalism, but with a complete irrationality of means. His array of policies from immigration to tariffs is unlikely to serve those they purport to help, while his centralization of executive power — taking to an extreme historical tendencies in both parties, and as far as he can the right-wing theory of the unitary executive — forsakes much legitimacy and therefore long-run entrenchment. The gutting of the federal government is a long-term libertarian dream, and something that again sets back the interests of those he hopes to help. There is also, of course, a fair bit of punishing his enemies, which overlaps with his aspiration to avoid his fate of being hemmed in and sidestepped by his own servants the last time. All of these are consistent with his first-term goals, but he is far more effective in actually implementing them this time around. The newest part is the attack on universities, which was no part of his agenda last time.
- Daniel Bessner
-
Clearly something changed between Trump I and Trump II — the tactics have shifted. But so has the strategy. Those few historians who remain will spend some time examining what caused this shift, but even though it’s early days, why do you think Trump seems so much more determined this time around?
- Samuel Moyn
-
The central reasons are that Trump has been emboldened by his electoral victory against all odds, and that his current lieutenants are equally as unaffected by Beltway orthodoxies as he always has been. His present tactics are also conditioned by the very Resistance that hemmed him in last time, even though it was also his own scattered policymaking that accounted for his fecklessness the first time around.
Here is a sobering thought: He was generally opposed, starting in 2017, through mobilizing the law to constrain the presidency. That opposition may not have stopped Trump from regaining power, but the experience did shape his own future tactics. You say he is lawless over and over, when you dispute his policies and values? He will respond by attempting to rely on the law to punish you. And even as many insist that the law is the indispensable source of limits on power, Trump experiments with testing those limits, in hopes that the overall results will expand his power instead.
- Daniel Bessner
-
Are there actual limits that the law imposes? A lot of liberals have spoken in dark tones about a “constitutional crisis” coming or that’s already here, especially if and when Trump defies court orders.
- Samuel Moyn
-
I think Trump’s bluster so far about “defying” judges is far less significant than his pushing the law to see how far it will authorize his acts, including finding old laws that are toxic legacies of bygone eras (like the Alien Enemies Act) and going a little further than the Supreme Court itself has been willing to go (like in the areas of presidential control over the executive branch) to invite another step. In turn, Trump recognizes that the law is a double-edged sword: it generally authorizes, rather than undercuts, power. One of the many ways in which Trump has not broken radically with precedents is that the history of the country since World War II has involved the universal collusion of all branches of government, and indeed the public itself, with presidentialism.
- Daniel Bessner
-
Let’s talk a bit more about that. When I was growing up in the 1990s and 2000s, liberals would often reference the Warren Court as being one of the key instigators of progressive social change in the United States. The law, in other words, was presented as on the side of justice — at least in the medium and long terms. Has this notion undergone a shift in recent years? Are Trump’s actions reshaping how lawyers and legal scholars understand their role?
- Samuel Moyn
-
Institutions like mine, Yale Law School, are loath to break with the fantasy that, properly interpreted, the law is liberal, even after fifty years of conservatives finding their preferred outcomes in it more regularly. Of course, the Supreme Court was anomalously and briefly involved in social change, but its role was always overhyped. I’d say the belief in its providential role has been far more damaging than its contributions have been progressive, keeping a rosy glow around the judiciary while law moved ever more or less inexorably right.
Even now, the beneficence of the courts is being treated as an indispensable meme at a moment in which Democrats have lost control of both houses of Congress and the presidency. The central casting version of this is in Noah Feldman’s recent piece “The Last Bulwark” in the New York Review of Books. He presents the judiciary as the bastion from which autocracy is to be fended off and chides the Left for deriding courts — insisting that we “stop once and for all the self-destructive, self-defeating effort to depict the Court as inherently illegitimate just because it is capable of making terribly wrong conservative decisions.” Given that the Supreme Court has been conservative for the totality of his and my lifetimes and reactionary for most of our country’s history, this is a little like saying that we should avoid calling out free markets merely because a few people occasionally starve.
- Daniel Bessner
-
What about the concept of “lawfare”?
- Samuel Moyn
-
That term was coined after September 11 to suggest that terrorists used law as a weapon of war. They did — but only because everyone who engages the law does. Lawfare refers to the fact that law is a tool for all comers in struggle with each other. Nor is this bad faith: the law leaves so much open to interpretation and reinterpretation that struggle is required to determine what the law is going to mean next.
At the same time, one of the central insights of those who call out lawfare and “lawyer brain” as a political strategy is that there are alternatives to them that are both more honest and more effective. To the consternation of many, I argued that liberals should leave aside legalistic politics in order to oppose Trump in a contest of visions over the future. But too many bet on calling his acts or candidacy illegal instead. A political strategy of regaining power is obviously the best course now that turning to the courts, while worthwhile for limiting some damage, will mainly ratify the political changes Trump is bringing about.
- Daniel Bessner
-
This leads me to two related questions. First, what do you make of the Trump administration’s arrest of Hannah Dugan, the Wisconsin judge who allegedly helped an undocumented immigrant escape the clutches of Immigration and Customs Enforcement (ICE)? And perhaps relatedly, do you think we’re in, or at the risk of entering if we’re not yet in, a constitutional crisis? Personally I think we’ve been in a low-level constitutional crisis since at least 1942, the last time Congress declared war. My thoughts are that maybe, to some degree, the crisis has come, or is coming, home. But I’m curious what you think.
- Samuel Moyn
-
Dugan’s arrest has obvious symbolism at a time when Trump and his minions are threatening to go rogue — but this particular incident involves a state judge in an unrelated matter, much like the episode of Judge Shelley Joseph in the first Trump administration. As for the phrase “constitutional crisis,” it’s one of the most overused and unanalytical notions in American life. I’d avoid it as unhelpful for grasping the details and stakes of the political situation; it has a lot of resemblances to diagnoses of “fascism” — which I know you hate — in prompting a boring and endless “Are we there yet?” debate that doesn’t help focus on how the balance of continuity and change is shifting.
It would obviously be a major event if the president defied a direct court order. But the Supreme Court is already attempting to negotiate compliance, and Trump is not very likely, as of now, to flout the few Ls the Supreme Court suggests he takes for propriety’s sake. The Texas law professor Sanford Levinson remarked in a 2019 article for the Atlantic that “the Constitution is the crisis,” and that’s probably the best conclusion. The problem with the law is not mainly that Trump threatens to break it, but that it has produced Trump in the first place and allows him to get away with so much, with more to come.
- Daniel Bessner
-
So if we’re not in a constitutional crisis — if the term itself is unhelpful and occluding, and if the document is the thing that in and of itself produces so-called crises — what do you think is happening? Are we in a crisis of liberalism? Of capitalism? Or is the very concept of crisis not a useful frame through which to understand what’s going on? If so, how should we understand our present moment?
- Samuel Moyn
-
There was hardly an ideal America before “crisis,” whenever you say that set in. We have been arguing since 2016, if not before, against any easy rhetoric of abnormalcy, since what matters is how continuous and systemic our troubles have been. Without getting too controversial or detailed, my starting point is a convergence today of American imperial decline on the world stage with a globalizing neoliberalism that responded to the slowing of growth in the 1970s with an effective coup by the rich.
Among many other effects, that development has undermined the credibility of the Democratic Party in the United States, perhaps beyond repair, as a representative of working people, who are casting about for scapegoats and a savior who promises to punish them. None of this is new, and the basic syndrome has been far worse in other forms in the past. That doesn’t mean it can’t get worse now, especially as there is no way to reverse imperial decline; and no one has attempted to undo the damage of neoliberalism, let alone to offer a vision of the universal emancipation liberals and socialists once promised. It also seems undeniable that anyone who survives our era will look back and blame us for missing our last chance to confront ecological crisis. Still, what else is there to do except agitate for ambitious progressives, whom our era has set up to take charge after centrists and reactionaries fail?