David Michael Miller
The surprise victory of Donald Trump left some civil libertarians in a state of panic. In their view, intolerance toward dissent and disregard for the rule of law were central to the president-elect’s campaign platform.
Almost as quickly, commentators emerged to insist that everything will be just fine. These optimists did not discount Trump’s authoritarian ambitions, but argued that other political institutions would keep a rogue executive largely in check. Said Noah Feldman of BloombergView, “basic rights and the rule of law aren’t going to disappear because Donald Trump was elected. The Constitution was built for our situation.”
Indeed, panic is premature. But America is not invulnerable to tyranny. In fact, President Trump will have a clear path to obliterating institutional opposition, should he choose to take it. Total dominance would require little more than a ruthless determination on his part. For as long as it stays in Republican hands, Congress would offer no meaningful resistance to Trump absolutism. It will trim a budget proposal here and rebuff a tariff there, but presidents are the undisputed leaders of their party. Anyway, protecting civil liberties has not been high on the list of GOP priorities for a very long time.
The judiciary, on the other hand, would do its best to have our backs. Even right-leaning judges embrace broadly protective interpretations of the First, Fourth and 14th Amendments. Most of the Supreme Court’s conservative justices were, for example, happy to help smack down some of the Bush administration’s more egregious post-9/11 due process abuses.
That a president might fail to heed a Supreme Court directive is unthinkable to most Americans. But Newt Gingrich, one of Trump’s top advisers, believes that “[i]f the court makes a fundamentally wrong decision, the president can in fact ignore it.” Such stunningly audacious notions might soon be taken seriously in the Oval Office.
The citizens of many countries know intuitively that their military, not their judiciary, is the true final arbiter of governmental affairs. Americans have never really had to consider that. But if ever Commander in Chief Trump dismisses an adverse court decision by asking, “and how many divisions do the justices have?” (paraphrasing Josef Stalin), our institutional framework will promptly begin to crumble.
Now, the current leadership of our armed forces is steeped in respect for federal laws like the Posse Comitatus Act of 1878, which prohibits the use of military personnel for domestic law enforcement. And military culture, as codified in official doctrine, “reject[s] and report[s] illegal, unethical, or immoral orders or actions.” At one point during the campaign, retired four-star general Michael Hayden insisted that “American armed forces would refuse to act” if President Trump issues an unlawful order.
But when asked how he would deal with a military that might not fulfill his every whim, Trump seemed equally certain that “[i]f I say do it, they’re gonna do it.”
Such confidence could be written off as bluster, coming from almost anyone else. But Trump is a man of extraordinary will. And soon he will have the power to transform the culture of the military into one of unquestioning obedience.
By law, a commander in chief’s authority to forcibly discharge military personnel is limited. But there are a number of ways a president can sideline an uncooperative member of the upper ranks. Trump could systematically purge those he deems insufficiently servile from the high command and nominate sycophants to replace them. With a team of yes-men in control of the American military machine, quite literally no one could tell President Trump what to do.
Trump has actually hinted at such a move. In September, he said, “I think the generals have been reduced to rubble...to a point where it’s embarrassing to our country.” Under his presidency, “they’d probably be different generals, to be honest with you.” And Trump has announced plans to fill many top civilian positions in his administration with recently retired officers who have deep ties to the military command structure. He has already developed an unsettling habit of referring to “my generals.”
What about the rank-and-file, all of whom have taken an oath to support and defend the Constitution? Lamentably, the more independent-minded among them might soon flee on their own. In a recent poll, one in five active service people said they are less likely to re-enlist in a Trump-commanded military.
So, civil libertarians, now is not the time for panic. And with good fortune, that time will never come. But keep a very close eye on the established military brass. If they start falling, like so many canaries in a coalmine, hit the streets and hit them with tenacity, while you are still free to do so.
Michael Cummins is a Madison-based business analyst.
