Back in February President Donald Trump posted about being a king.
The official White House social media account then mocked up this image and posted it:
Of course, the impression conveyed was this was some sort of ‘joke’.
But, from another perspective it was not a joke: for if you look and listen you will find that Trump very much has a monarchical view of his own powers as president.
So I wrote about this at Prospect:
In essence: my argument was that Trump sees not only executive power as within his remit, but he also believes that legislative and judicial functions are also subject to his control, indeed whim.
This weekend, as the “No Kings” demonstrations gained force in the United States, I spelled out this view on social media:
On one level, this is all constitutional theory: power is power, and it does not much practically matter what the supposed theoretical origin of that power is.
But it also points to Trump’s lack of restraint: he does not believe there is or should be anyone or anything who can say ‘No’ to what he wants to do.
This week at Prospect, four months on from the column above, I set out how Trump is now mobilising troops against his own citizens – click and read here.
Here Trump is – like with ‘emergency’ tariffs and ‘enemy alien’ deportations/removals – purporting to use old ancient Congressional laws to do as he wishes.
Of course, on any sensible legal analysis, those old laws do not bear the load which Trump and his circle are placing on them.
But the Republican majorities in both houses of Congress seem not seem to care, and the conservative-dominated judiciary is in no rush to hold his actions as ‘ultra vires’ – that is outside of his legal powers.
Trump is thereby acting as a king not because of the inherent executive powers allocated to the president in the United States constitution, but because he has robbed the legislature and judiciary of their powers too.
That is ‘robbed’, with the implicit if not explicit support of the legislators and judges.
One of many possible outcomes of the current crisis is violent civil conflict in the United States – you have protests and an armed state seeking to use its military powers against those protests, and you have deep civil contradictions as to Trump’s abuse of his powers.
There is now more than enough material for a future GCSE or A-Level student to start an essay with “A civil war in the United States became inevitable when…”.
But a civil war is not inevitable: another outcome is that the United States just becomes an ever more illiberal and oppressive polity where nothing can stand in the way of Trump, or of his followers and successors.
That is the thing about constitutional crises: if you can work out the outcome, it is not a crisis.
But whatever the effects, one of the causes will be Trump’s own sense of the limitless nature of his powers.
He believes he can do whatever he wants – and there seems good evidence that he is empirically right in thinking so.
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I’ve been writing up the Wars of the Roses for my 10 yr old son to read and thinking a lot about civil wars. Are there parallels twixt WoR and 2025 US? Few I suspect. Cade’s rebellion (1450) was a precursor of the WoR. End of 100 Yrs Wars (1453) and soldiers on the loose. How many military in US with not much to do for now? Extremely rich and thus – mostly powerful – ‘subjects’. A very weak (Henry VI) and then – in effect – a usurper king (on and off the throne). It was a war twixt the very rich and their underlings. How many rich and consentient underlings do Trump and his sycophants have?
What about the National guard chain of command? Do individuals bear any personal legal responsibility in United States law if they execute an unlawful order (as they appear to be doing)?
A couple of quick thoughts. First, I’m not sure that the distinction between monarchical and presidential outlooks is all that great.
Here’s the thought: The Constitutional powers of the Presidency are great. For example, there’s an enormous amount of governmental patronage available, precisely because of the separation of powers doctrine. In many ways, the President has powers analogous to the kinds of powers available to a slightly modernised Hanoverian monarch, give or take – which is unsurprising, given that the Constitution was written when it was, with the prevailing account of power.
The difference, of course, is that the European monarchy from which the Presidency went through the motions of differentiating itself was actually freer to reform and easier to rein in precisely because of the lack of a written Constitution; the Presidency is trappen in amber. I therefore offer as a thesis that the Presidency has, beneath the surface, more in common with a late eighteenth-century monarchy than does a twenty-first century monarchy.
Second: I believe that the French king to whom you allude is Louis XVI. But the l’État aphorism is Louis XIV’s, and he was much wiser.
The golden rule of internet comments: any comment that starts “I’m not sure” invariably shows its author to be very sure indeed of their view. I will never understand why some commenters start their comments with that formulation.
Will the American Republic as you have described it be restored once Trump is gone? There are examples of the restoration of an ancestral constitution once the dictator was safely dead: Great Britain after the death of Cromwell is one.
The founding fathers were undoubtedly steered by their understanding of the Roman Republic.
Roman dictators – Sulla and Caesar in particular – were allowed legislative and executive power (which is why originally a dictatorship was to last only six months).
Although Julius Caesar turned down a kingly crown, he was seen as having achieved as dictator perpetuus (dictator for life) precisely that monarchical power which the ancestral constitution of the Romans was designed to prevent. Augustus and his successors came to have precisely that power although they were careful not to take the office of dictator.
After Sulla’s death (although he in theory laid down his dictatorship before his death while he lived he exercised the power of life and death notoriously having one opponent strangled by his slaves) the Roman Republic was restored.
On the other hand the Roman Republic was never restored after Augustus rose to supreme power.
The failure of the mid-17th century Commonwealth was a failure of succession planning. Because no system had been established (and consented to by a majority of powerful individuals) that would make the Protectorship sustainable, there was only a choice between Richard Cromwell or the restoration of the Stuarts – or more war.
Because both Richard and war had very little support, there was no mechanism for the Commonwealth to outlive Oliver Cromwell.
I suppose the question in American terms is whether Trump’s allies can sufficiently control future succession to ensure that their choice is always in the White House. That, I suppose, would require taking control of electoral processes and of the judiciary.
And that is certainly their intention. Whether they have been or will be successful, only time will tell.
I don’t think a civil war is inevitable, or even likely, unless protests like No King’s become violent and Trump turns out the troops on them. I don’t think the opposition want armed conflict, and Americans tend to be patient. They know things can change dramatically at the mid terms, when Trump may lose his majority in both houses of Congress. He’d become a lame duck.
I think the only possibility of civil war would be if Trump creates an emergency and cancels the elections in 2028.
Unfortunately, I would be concerned that there are many developments that fall short of “civil war” that could prove equally – if not more – troubling.
– How about, for example, declaring a political group such as the “Democratic Socialists of America” to be an illegal/terrorist organization, then rounding up dozens of elected Democrats and charging them with criminal membership [please see e.g. baseless claims of CECOT detainees being members of MS-13 and/or Tren De Aragua] of a banned organization, before throwing them in jail right before elections – and thus declaring any/all votes for those candidates to be “null and void”.
– How about pushing the US in to military conflict with a foreign nation over some kind of dreamt-up excuse – like, I don’t know, the invasion of Panama to “reclaim” the Canal – in order to claim that the nation was at war and therefore elections can be postponed. Indefinitely.
I do agree with you, however, that if President Trump has any designs on artificially extending his power, then the major pieces of that strategy will need to be in place before the mid-terms, because if either the House or Senate flip back to Democrat, then, as you say, he becomes not only a lame duck, but the target of endless congressional investigations.
I realise David is not saying that civil war is likely and imminent, but I’m surprised by how often I’ve read other usually sensible people suggest that it is.
Mass protest, rebellion, attempted revolution even, those may be looming. But they are not civil war. Two things come to mind that are necessary for civil war, and that do not currently exist.
Firstly, civil wars very rarely emerge from political situations that could provoke them, because at any time and in any place, most people really don’t want a civil war. Civil wars are horrific.
This becomes a bigger obstacle the further a society moves away from being feudal and agrarian; in a feudal agrarian society, only a tiny number of powerful individuals need to be willing to pursue civil war, and everyone of lower status has no option but to find the rusty old sword in the barn and go off to battle – whereas in modern society, there is far greater freedom for individuals to decide, no, they don’t want any part of that.
The second obstacle is that civil wars require two (or more) separate military entities, neither having the ability to rapidly eliminate the other. This is what’s happening in Sudan, to use a prominent example; the army and the former dictator’s paramilitary force are too evenly matched for one to swiftly defeat the other.
I don’t see where this second military power is going to come from, not given the size and modernity of the American military machine. Perhaps that machine could fracture into different factions, perhaps dissenting states could take full control of parts of it. I wouldn’t say that could never happen – but I would say that it couldn’t happen in a hurry.
And no, the militia that Second Amendment enthusiasts like to dream of (even if enough of them were willing to oppose Trump) would not in any way be a military force equivalent to that led by the Commander-in-Chief. It’s not the nineteenth century any more.
(Of course, should the military decide that their loyalty to the Constitution requires them to oppose the Government, then that would also not produce a civil war, because it would then be Trump’s side which lacked the means to adequately fight back.)
The notion of what a ‘king’ is seems as elastic as the related idea of ‘sovereignty’.
The ‘state of emergency’ / ‘state of exception’ debate is useful; a constitutional principle famously abused in the Prussian coup (by the Federal government against the Prussian parliament) under Article 48 of the Weimar constitution. On that parallel, California is Trump’s Altona Bloody Sunday, a pretext.
By then Carl Schmitt’s principle that ‘he is sovereign who can establish the state of exception’ had already become established. Back of Schmitt is Adolph Nissen’s C19th work on the Roman concept of Iustitium. Nissen conducted a sort of constitutional archaeology, the practice of Iustitium had dropped out of modern awareness; it still is recondite. When the Senate declared Iustitium, setting a consul in charge and effectively suspending the rule of law, the consequence was often a more horrific bout of violence than the crisis it was meant to resolve: that seems an apt consideration right now. (The modern classic is Gregory Golden’s ‘Crisis Management in the Roman Republic’).
‘Sovereignty’ only starts to be used in political or constitutional theory following the success of Bodin’s ‘Six books of the Commonwealth’ which took Europe by storm in the late 16th Century. Bodin was writing in the immediate aftermath of the St Bartholomew’s Day Massacre, in the midst of violence triggered by the Reformation, a blend of political and religious polarisations not unlike that in the modern US, with appeals to very different concepts of authority. Bodin wanted a Leviathan-type sovereign to rein in the violent excesses from both sides: Trump clearly wants the excesses. It was Bodin who first stressed, in line with the notion of Iustitium, that sovereignty consisted primarily not in the capacity to make law, but in the capacity to suspend it.
Learning from history is both immensely helpful and near-impossible. The range of historical points we could reasonably learn from is huge, with similar vocabulary used in very different ways. Is there really anything but ‘what happens’? If we”re watching the collapse of liberal democracy, so be it.
A constitution is like a soldier’s helmet, perhaps; designed to protect your head but sometimes, in a helicopter for example, the wisest thing is to sit on it. Ignore the intended use and focus on staying safe.
Could enough of the States, acting together, resist Trump? The shift of the judiciary to a conservative one, was effectively achieved against the popular will. Trump won the popular vote (just!) this time but he didn’t in 2016. That is the most scary thing. Unless the Supreme Court is demonstrably stout in its defence of the Constitution, then the temptation to challenge it is increased, and the will of others to resist such challenges is decreased
You mention many possibilities. I would suggest that the most likely outcome is that Trump will strive to be President/Dictator for life which means no mid-term elections in 2026 and no Presidential election in 2028.
If there is a democratic majority in 2026 in one or both houses, then Trump is liable to an attempt to impeachment him for questionable decisions taken since his new term began. Let’s say the deployment of the National Guard and marines in California to suppress an alleged insurrection. Or the use of arbitrary arrest, imprisonment and deportation of individuals who may or may not have citizenship, right to stay and work etc. Now does Trump rely on the Supreme Court ruling in Trump v United States of last Summer?
And then let us supposes that he either recognizes the twenty-second amendment to the constitution and does not run in 2028, or he does run and loses to a Democrat…. what then? Can he guarantee that the next President will not ask the DoJ (which will now be a political tool of the White House) to examine Trump’s record and prosecute where appropriate?
I don’t see that Trump has any real option now but the President for Life one. Retirement to Mar-a-Lago to hold court there is no longer a possibility.
This is the problem with popularists. There is no way of getting them out of power once they have dismantled all the democratic structures of the state. No way of flushing the sewers. (Well there are, and we all know what they are, but none of them are particularly palatable.)
This is what we should be saying to young people who think that Farage is some sort of answer. When he fails, how do you get someone else in government?