Yes, we still have a constitutional democracy
March 18, 2025
For the fourth day in a row (at least), Trump has refused to comply with multiple court orders and refused even to answer questions in federal court about why he is violating them. It is no understatement to say we are facing a constitutional crisis.
For understandable reasons, many commentators published statements on Monday that said or suggested that our constitutional democracy “would be finished” if Trump successfully defies a court order. The commentators who made such statements are respected professionals whom I hold in the highest regard. I understand their reason for alarm and the import of their statements. They are right in their effort to rouse the American public to action. Bless them all for their leadership and passion!
But I disagree that American democracy “will be finished” if Trump successfully ignores court orders. True, a president who defies the authority of the judiciary will inflict grievous injury on the Constitution. Such defiance would be lawless, shameful, and antithetical to the founding charter of our nation.
But the American people will survive the tumult and chaos. The Constitution will endure as the framework for the future of a great nation. We will outlast Trump and his enablers. Justice will be restored, and a reckoning will be had. It is only a matter of time.
Why am I confident that Trump's defiance of the judiciary will not “finish our democracy?”
Because we have broken faith with the Constitution on numerous occasions in our past but always managed to return to our founding document, which serves as our north star and moral compass. We will do so again.
There is danger in telling people that “democracy is finished” if Trump successfully ignores a court order. If we make that claim often enough, people will believe us—even though it is not true, not by a long shot. American democracy will not end so long as we do not give up on the Constitution.
And we aren’t going to give up on the Constitution. I am not. You won’t. Your neighbors and friends won’t. Hundreds of millions of Americans are not going to quit. In the words of Alexei Navalny, “You are not allowed to give up.”
American democracy survived the secession of eleven states.
It survived the relegation of Black Americans to status as second-class citizens during the Jim Crow era.
It survived the internment of Japanese Americans during WWII.
It survived the era during which J Edgar Hoover and US presidents used the FBI as a domestic spy agency to surveil and disrupt civil rights leaders and their followers.
It survived a Supreme Court telling Americans that segregation in education, transportation, and housing was sanctioned by the Constitution.
It survived a secret US war on Laos and successful efforts by the CIA to overthrow governments on three continents.
It survived the Supreme Court telling women that they are second-class citizens who surrender their personal autonomy when they are or might be pregnant.
Each of the above abominations was committed by men (yes, all men, except for the addition of Amy Coney Barrett) who justified their lawless actions in the name of the Constitution.
Each of the above instances—and many more—were (and continue to be) constitutional crises of their own. And yet, the American people have not given up. They return to the Constitution after each crisis and resolve anew to achieve the promises of the Constitution.
We aren’t going to give up, even if Trump defies the Constitution. We are not permitted to give up—not because Alexei Navalny said so, but because we have been delivered to this moment by the sacrifice, blood, and tears of our ancestors. They didn’t give up on us—and we aren’t going to be the generation that falters in passing the torch of democracy to the next generation.
Please do not misunderstand my point. I am not saying, “Everything is going to be fine; don’t worry.” To the contrary, I am bewildered that the streets are not overflowing with protesters. I do not understand how so many Americans can passively watch the dismantling of the federal government. I do not understand how our congressional leaders can act as though we are powerless to resist the unfolding constitutional crisis.
The fact that we will survive this constitutional crisis does not excuse us from action. Rather, it is only because of our action that we will survive this constitutional crisis.
Yes, we face a constitutional crisis. No, American democracy is not finished. After 230 years, it is just getting started.
Update on Trump's refusal to obey court order regarding alleged Venezuelan gang members deported to El Salvador.
In yesterday’s newsletter, I reported on the details of Trump's deportation of Venezuelan gang members to El Salvador despite a court order pausing the deportation and ordering US military transport planes to return to the US. (At the time of the order, they planes were in flight to El Salvador.)
The judge ordered the Trump administration's lawyers to appear for a hearing at 5 p.m. on Monday to provide details regarding the administration's failure to obey the court order. The federal government asked the judge to delay the hearing (he refused) and asked the DC Circuit Court of Appeals to remove the judge from the case (the DC Circuit Court of Appeals did not do so).
The hearing was one for the ages. The lawyer for the Trump administration refused to answer any of the questions posed by the judge—except to say that he couldn’t answer because of national security concerns. The lawyer for the administration did say that Trump was justified in ignoring the order because (a) the order was made orally from the bench and was not in writing, and (b) the flights were over international waters at the time the judge issued his orders.
The explanations were so ludicrous the judge repeatedly laughed in disbelief at the lawyer.
A detailed recounting of the hearing is included in Law & Crime, Judge grills Trump DOJ over White House ignoring oral order. If you are interested in this story, read the entire Law & Crime report.
There is a serious takeaway from the hearing. It appears that the Trump administration is positioning itself to argue that not only is it not required to comply with court orders but it does not even have to explain its reasons for making that assertion.
To say the least, if the Trump administration’s position were to be upheld, it would effectively remove all constitutional checks and balances on the executive branch—except for impeachment and conviction by Congress. This is, indeed, a constitutional crisis.
As noted yesterday, there are two lines of defense that remain available to us. The first is the courts—and, ultimately, the Supreme Court. Trump must be forced to comply with court orders by the Supreme Court.
And if Trump ignores court orders after the cases are appealed to the Supreme Court, then it is up to the people to engage in national mass action to shut down the economy and the government. A wave of anti-government protests are sweeping through Europe in pro-Putin countries. See The Telegraph, Protests against pro-Russian leaders sweep Eastern Europe.
Trump should be paying close attention to what is happening in Europe. People are fed up with Putin-style dictators—everywhere.
Trump targets US and international law firms over DEI
On Monday, the Trump administration issued extensive requests for information and documents from the leading law firms in the US (and globally) regarding their efforts to promote diversity and inclusion in the workplace. The requests for information are here: Law_Firm_Letters_-_03.17.2025.pdf.
As noted yesterday, American law firms must coordinate their defense of themselves and the legal profession. Trump is trying to divide the legal profession by excluding some firms (e.g., Jones Day and Sullivan & Cromwell are missing; both have assisted Trump in his criminal defense work.)
Although many of the names will be meaningless to most readers, lawyers should be shocked by the list of firms that received the letters. Here it is:
Perkins Coie
Cooley
Reed Smith
A&O Shearman
Debevoise & Plimpton
Freshfields Bruckhaus Deringer
Goodwin Procter
Hogan Lovells
Kirkland & Ellis
Latham & Watkins
McDermott Will & Emery
Milbank
Morgan Lewis Bockius
Morrison & Foerster
Ropes & Gray
Sidley Austin
Simpson Thatcher & Bartlett
Skadden Arps Slate Meagher & Flom
White & Case
Wilmer Hale
DOGE using armed escorts to break into buildings
Rachel Maddow reported on Monday evening about two disturbing instances in which DOGE hackers effectively forced their way into government agencies with the help of armed escorts. In the latest instance, the US Institute for Peace—an independent agency created by Congress—resisted the efforts of DOGE staff to enter the building.
On their first attempt to enter the Institute for Peace, the DOGE staff were accompanied by FBI agents. On the second attempt, DOGE was reportedly accompanied by US Marshals and—after a call to the DC police—were assisted by the DC Metropolitan police. See Agency CEO: "DOGE has broken into our building."
To the extent that there are disputes about the right of DOGE employees to enter government buildings, the appropriate course of action is for the relevant agencies to seek direction from supervisors in the administration or to obtain clarification from the courts. Using the US Marshals Office like a private paramilitary for DOGE is another dangerous step toward a Trump dictatorship.
Democracy Forward is suing to obtain details about the use of US Marshals to gain access to buildings. Read about Democracy Forward’s lawsuit here: Democracy Forward, Suit Seeks to Compel Records on DOGE’s Use of US Marshals Service.
More attacks on science
Dictators hate science. Why? Because the scientific method is a method of critical thinking designed to discover the truth. Independent thinking is inimical to dictators, who need people to unquestioningly accept what they are told by autocrats.
In two distributing developments, science has taken another blow under the DOGE attack on the federal government.
First, the NIH is telling grant writers seeking research funds to scrub references to mRNA. The discovery of the mRNA gene-editing technique (more generally, the CRISPR Cas9 technology) is one of the most significant scientific breakthroughs in the last century. It holds huge promise in treating cruel diseases for which there is currently no cure. But the Trump administration is seeking to choke off funding for mRNA research because the technology was used in creating the Covid vaccine. See KFF News, Scientists Say NIH Officials Told Them To Scrub mRNA References on Grants.
Second, the Trump administration eliminated the EPA’s scientific research arm. See article in NYTimes, Trump Administration Aims to Eliminate E.P.A.’s Scientific Research Arm. (Accessible to all.)
By eliminating the EPA research arm, right wingers will no longer have to refute scientific research documenting the contribution of human activity to the climate crisis. The elimination of over 1,000 scientists is a major blow to the fight against human-caused climate change.
Concluding Thoughts
The US Supreme Court will soon be presented with a case in which Trump claims that he is not required to obey court orders. We should hope for the best but plan for the worst.
The worst would be a decision by the Supreme Court that fails to unequivocally tell Trump he must comply with Court orders. Anything less will be viewed as a victory by Trump.
No matter what happens, the answer lies in the mass mobilization of the American people. We're making progress but need to pick up the pace. That is not a criticism but an observation. Readers of this newsletter are doing a great job of taking to the streets.
I receive photos daily from readers staffing protests across the nation. One reader sent a video of her 83-year-old mother, whom she describes as a “budding activist”, speaking to a crowd at a protest. It is never too late to start. Indeed, we will need everyone to pitch in to save democracy. We can do it. We will do it. It is just a matter of time. And I sense that we will turn this situation around sooner than most people expect.
Stay strong, everyone!
Daily Dose of Perspective
From earlier this week, the Rosette Nebula. Always a pleasing photo.
Robert, I appreciate your belief that Trump's defiance of court orders will not cause us to lose our democracy. Your examples make a lot of sense.
That view allows us the breathing room to keep fighting no matter how he flaunts the rules in his desperate overreach for money and power to fill that forever empty hole where his heart and self-esteem were supposed to be.
Thank you too, for continuing to be positive about the fact that if we don't give up, we will win. We will win.
But as we citizens do all we can do, I suggest that the Democrats catch up to their unelected, unpaid constituents ASAP. There is no longer any excuse for elected Democrats to be trailing their voters when it comes to uniting and fighting for our freedoms and the rule of law.
If they don't start working as a smart, aggressive, united group to save democracy and help the people in this country, then they are sending a message that they don't understand how dangerous and lawless the white "christian" nationalist party in the White House has become to our current and future health, happiness and safety.
If they keep sending that message, we will need to find more intuitive, tough and effective leaders, because the stakes are too high for any other kind.
Peace and thanks to everyone working--in big ways and small ways--to preserve this country as a free, healthy, law-abiding and prosperous land for ALL of its citizens.
I am heartened when I read your posts, even if I am terribly frightened.
I have a genetic terminal disease and am now unable to sit up, never mind move my body. It is a terrible feeling, to have been a trained Holocaust scholar and yet be unable to use that at all when the time came that it was all being relevant. So I am glad that there ARE people who are working all facets in order to save our democracy.
I worry a lot about Medicaid and Medicare and Social Security, both because of household income and because the minute that Medicaid and/or Medicare are not covering me, I will die shortly thereafter. Supports from both direct medical care and having paid home health care have bought me an extra 16 years in ways big and small. And currently I am alive solely because of those supports. Losing drugs at this point would end my life quickly enough.
Too much staring at my own mortality in ways big and small for sure.