El Salvador

Less than seven weeks into Donald Trump’s second term as president, his administration has set off a new wave of handwringing over what has by now become a familiar question: has the US entered a constitutional crisis?Triggering the latest iteration of that worry, the government hastily deported more than 200 Venezuelan immigrants to a notorious prison in El Salvador, without hearings or evidence and thus without anything even resembling due process of law, pursuant to the US president’s proclamation “signed in the dark on Friday evening” that they constituted an invasion by a foreign state.Trump invoked a 1798 statute last used to intern Japanese Americans during the second world war, buttressed by powers he claimed were inherent in the presidency. Chief judge James E Boasberg of the US district court for the District of Columbia rushed to convene a hearing on the legality of the challenged action as two deportation flights departed from Texas, followed quickly by a third. Moments after the judge ordered them to return so he could rule on a motion barring the deportation, El Salvador’s president, Nayib Bukele, tweeted: “Oopsie … Too late”, with a laughing emoji, even as the court considered whether its order had been defied.The branch of government best able to uncover and safeguard both our noblest traditions and the simple truth in moments such as these – the judiciary – has been hobbled and vilified by Trump and his allies, making wildly irresponsible calls for impeachment that put dangerous targets on the backs of judges who rule in ways they dislike. Even mild-mannered chief justice John Roberts had to cry “foul”. The administration’s cavalier attitude toward courts that fail to do its bidding, exemplified by calls for Boasberg’s removal, seemed to confirm concerns about a looming crisis.But searching for evidence of a “constitutional crisis” in the rapidly escalating clashes of the executive branch with the judicial branch misses the larger cataclysm taking place across the US. This president, abetted by the supine acquiescence of the Republican Congress and licensed by a US supreme court partly of his own making, is not just temporarily deconstructing the institutions that comprise our democracy. He and his circle are making a bid to reshape the US altogether by systematically erasing and distorting the historical underpinnings of our 235-year-old experiment in self-government under law.What we are currently living through is nothing less than a reorganized forgetting of the building blocks of our republic and the history of our struggles, distorting what it means to be American. The body politic is being hollowed out by a rapidly metastasizing virus attacking the underpinnings of our entire constitutional system. Make no mistake. This is how dictatorship grows.Symptomatic of that reshaping is the peculiar emergence, in a duet staged by the president together with the world’s richest man and Trump’s main benefactor, of a co-presidency without precedent in our republic and without even a hint of the irony in such shared power being propagated by ideologues whose mantra has long been the need for a “unitary presidency”.As staffers of the newly minted so-called “department of government efficiency” (Doge) raided congressionally created independent federal agencies and foundations without warning and slashed entire programs without thought, the Trump administration stuttered when asked by the courts to explain who was in charge of the “department” that no Congress had created – and how the leader of that enterprise had somehow acquired the power of the purse that the constitution clearly delegated only to Congress.More than just stonewalling courts and refusing to provide basic information on government activities, the Trump administration has waged war on history itself. Having first debilitated our capacity to act, it is now coming after our capacity to think. The same day Boasberg directed the administration to explain why it had seemingly failed to comply with his order, Doge staffers marched into the Institute of Museum and Library Services (IMLS), the agency responsible for funding many needy public museums, libraries and historic repositories across the country.Like Julius Caesar besieging and burning the Library of Alexandria, the Doge officials descended upon the IMLS to begin the process of gutting the public institutions dedicated to preserving and making widely available the shared memory of our past. It was none other than Benjamin Franklin whose conception of public libraries democratized knowledge and made it accessible to ordinary people. What used to be the private province of the few became the public province of the many.The attack on the IMLS is only the latest episode of the Trump presidency’s attempt to privatize information while replacing authentic history with a version more to its liking. As internet archivists race to back up the nation’s files and records, Trump administration officials have been systematically purging government websites in real time of the tools, concepts and language we need to act as informed citizens. In response to secretary of defense Pete Hegseth’s order to remove “diversity” content from the department’s platforms, the Pentagon took down pages about the Holocaust, September 11, cancer awareness and suicide prevention. So too, the Department of Agriculture deleted entire datasets and resources that farmers relied on to identify ways of coping with heat waves, droughts, floods and wildfires. Websites belonging to the Small Business Administration and Arlington National Cemetery scrubbed their platforms of photographs and references to women, LGBTQ+ individuals and people of color, including facts about American heroes such as Jackie Robinson or Gen Colin Powell.Taken together, these events of the past few weeks reveal an alarmingly rapid collapse of what gives the United States constitution life and meaning. Its words may remain unchanged, but its role in our lives is crumbling before our eyes. Looking for a decisive explosion or a moment of crisis – what physicists call a singularity – in the chaotic onrush of presidential provocations is a fool’s errand, one calculated to disarm the resistance without which we will surely be doomed.The seeds of our ongoing disintegration long precede Trump’s rise to power. They were planted decades ago by strategic politicians who dressed rightwing ideologies in conservative garments, permitting the darkest angels of our nature to take hold and to reach a climax in fake claims of a stolen election that led to an insurrection in our country’s capital, followed first by the Senate’s abdication of its duty in Trump’s second impeachment trial (on the bogus ground that the trial had begun too late to give the Senate jurisdiction) and next by the US supreme court’s gifting of Trump – and every future president – with a nearly absolute immunity transforming the office from one restrained by law to a source of virtually limitless power.Rarely noted is how this frightening power to ignore federal criminal law has been conferred not only on the president but on his legions of loyal lieutenants, from public officials to private militias. Because the constitution itself gives presidents an unbridled power to pardon others – a power Trump reveled in employing to free from prison the violent insurrectionists that he had himself helped unleash – we now live under a system in which any president can license his trusted followers to commit crimes to consolidate his power and wealth, making clear that a pardon awaits them should they face federal prosecution. The upshot is that privateers in league with the president can safely ignore federal laws criminalizing corrupt evasion of rules designed to protect public health and safety while they casually usurp powers the constitution gave to Congress, moving so fast and breaking so much that not even genuinely independent federal courts can keep pace with the mayhem.In his iconic poem The Hollow Men, TS Eliot a century ago famously wrote: “This is the way the world ends / This is the way the world ends / … /Not with a bang but a whimper.” Rooted in our past, the anti-democracy virus has reached a fever pitch as it ravages the body politic and revises all traces of our history. It’s a virus we must fight with all the energy we can muster if we don’t want our system of self-government under law to die – not in a sudden explosion but with a quiet whimper.The tragedy is that too many politicians and organizations are caving in without a fight, leading others to follow suit. With each surrender, Trump and his minions not only grow more emboldened but cement their hold on power by cracking down on all who dare oppose them in court, including lawyers who come to the aid of the administration’s enemies.Without more courageous leaders – including Republican officeholders who fear being primaried by candidates backed by limitless wealth – and without more bravery on the part of corporate CEOs whose fortunes can be threatened by Trump, elite lawyers whose business can shrivel if Trump targets them, and ordinary citizens understandably fearing online threats and worse, this darkness will be our destiny as we are reduced to mere memories and then relegated to the vast wasteland of the forgotten.

Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law emeritus at Harvard Law School. Meriting special thanks and acknowledgment is his research assistant, Radhika M Kattula, a third-year law student at Harvard Law School. More