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Misrule of Law

The “Day One” Dictatorship

On the law in a fascist America


Last December, when asked if he would abuse power if reelected president, Donald Trump said, “except for day one.” In short, if we are to believe Trump’s own words, the constitutional order as we know it will be subverted from the moment he takes office. Of course, there are many unknowns here, starting with the capacity of Trumpists to implement what they have already told us they plan to do. But Trump and his people have all but told us that, in a second Trump term, the United States might approach a fascist form of government under the leadership of a messianic personality.

There is no fascism without dictatorship. This form of permanent power is emblematic of the fascist worldview. The primary aim of fascism is to destroy democracy from within, in order to create a modern dictatorship from above. Fascists propose a totalitarian state in which plurality and civil society would be silenced, and there would be few distinctions between the public and the private, or between the state and its citizens. Fascist regimes shut down the independent press and destroy the rule of law. Would all these actions be part of the promised one-day dictatorship? Would an American dictatorship look like the past experiences of Nazism and Italian fascism? History doesn’t repeat itself that neatly, but one thing is certain: If Trump wins and decides to try his one-day dictatorship, the president will also become a lawgiver, replacing legality with his own charismatic will.

A second Trump presidency could represent an all-out assault on the rule of law. How might this play out? In past fascist regimes, the destruction of the rule of law has required two steps. First, its suspension, through state of emergency declarations or delegations of legislative power (a legislature transferring its lawmaking power to the executive). Second, its violent subversion, by transforming the juridical and political orders via the erosion of the principles of separation of powers and checks and balances that prevent constitutional democratic regimes from becoming authoritarian. Both Mussolini and Hitler transferred parliament’s representation of the people, and therefore the power to make laws, to the executive. Il Duce and the Führer became the legal embodiments of the people. Consequently, their wills were the sole legitimate expressions of the nations’ laws. The executive’s prerogative, rooted in arbitrariness, discretionality, and violence, replaced the normative legal order based on the rule of law and proceduralism.

Trump will not have the similar institutional mechanisms that allowed Hitler or Mussolini to install dictatorships and personify the law. From the get-go, Hitler made use of constitutional emergency powers to suspend civil rights and arrest members of opposition parties, then forcing the Reichstag to authorize an Enabling Act decree providing the executive with full legislative powers. Similarly, Mussolini, after orchestrating a coup attempt, bullied the Parliament into procuring the legislative delegation of plenary powers to reorganize the institutional and juridical orders, gradually leading to the installation of a totalitarian regime.

In U.S. constitutional law, the principle of separation of powers limits delegated legislation to acts of Congress that authorize an executive branch agency to promulgate a set of regulations. In principle, this should prevent the emergence of a Trumpist totalitarian dictatorship in the short term, because the nondelegation constitutional doctrine prohibits Congress from transferring tout court its essential legislative functions to the executive. However, a range of legal paths could be perverted to make an authoritarian government possible.

On day one, for example, Trump could make use of the discretionary powers available to the executive branch for dictatorial purposes. He could direct the FBI and the Department of Justice to target his political rivals through investigations and indictments based on vague accusations such as instigation of violence, defamation, being an agent of a foreign power, corruption, or subversive activities. Possible targets might include not just Joe Biden or members of his family but private businesses, media companies, civil society organizations, and universities. To ensure the enactment of executive orders and agency directives, Trump will have to purge the federal government of civil servants who might refuse, question, or delay them.

In short, Trump could set the stage for transforming a normative, procedural federal administration into one ruled by discretionality and personal prerogative. The repopulating of the state’s bureaucracies with loyalists or parallel party structures was used in the past by Mussolini and Hitler as well as Juan Perón in Argentina and Spanish dictator Francisco Franco. Today, the tactic is employed by Viktor Orbán in Hungary and Recep Tayyip Erdoğan in Turkey.

A Trumpist regime could also pursue an expansive, autocratic, and discretionary interpretation of the executive’s presidential powers. Article 2 of the Constitution exclusively vests executive power in the president. Therefore, Trump could in theory place the entirety of the executive branch under direct presidential control, eliminating the relative autonomy of Cabinet departments such as the Department of Justice or the Pentagon. In addition, and less obviously, there are numerous federal agencies that fall within the executive branch but enjoy some insulation from direct presidential control—the Federal Reserve, the Federal Communications Commission, the Federal Trade Commission, and many others. Imagine these and other agencies as instruments of one man’s discretionary or arbitrary power.

Emergency powers are a related area of concern. In the past, emergency powers were triggered by previous fascist leaders to start dismantling the rule of law. Today in the United States, there are around 148 statutory powers that can become available to the president when a national emergency is declared. Emergencies can be declared in an arbitrary way because what constitutes an emergency is not defined by law, potentially allowing Trump to invoke any reason to justify one. These provisions automatically enhance the executive’s prerogative during emergencies and limit the scope of judicial review. Trump could legally use them to start subverting the rule of law in a permanent way. For example, the Communications Act of 1934 would allow Trump to shut down wireless communication, including the internet, in case of national emergency. Emergency powers would allow him to restrict domestic transportation, freeze banking assets, and block financial transactions, or even surveil political enemies. Emergency powers have been previously abused in U.S. history, most recently during the war on terror, but Trump’s abuse could be the first step to subvert the rule of law, legitimize a fascist regime, and erode civil liberties.

Finally, there are two other extremist ways for a Trumpist dictatorship to happen here: the Insurrection Act, and martial law. Already in 2020, Trump entertained using the Insurrection Act, a vaguely worded eighteenth-century relic, during the Black Live Matters protests, being stopped only by Secretary of Defense Mark Esper. This time—and we can probably assume that, with Trump in office, there will be no shortage of protests—Trump might not be discouraged. He could deploy the armed forces to assist local law enforcement to quell civil unrest or to use the military against any conspiracy that opposes or obstructs the execution of laws in the United States. Imagine now, just as in 2017, thousands of people are protesting at international airports against a new travel ban; Trump then triggers a national emergency and authorizes the National Guard to intervene and restore order, on the grounds that states or cities are unable or unwilling to enforce the law or public order has been lost. Or consider sanctuary cities obstructing ICE agents from carrying out mass deportations; Trump triggers the Insurrection Act, deploying the military in the streets of New York, San Francisco, or Chicago. In the 1950s and ’60s, Presidents Eisenhower and Kennedy deployed troops to desegregate schools in the South. Trump, on the other hand, could deputize National Guards in red states for the arrest of immigrants in blue states and sanctuary cities. Strikingly, the Supreme Court ruled in 1827 that the president alone determines the justification for invoking the Insurrection Act, preventing any judicial review on its determination, though the military’s actions remain under judicial oversight. And if the armed forces refuse his orders? Trump could follow Hitler’s and Mussolini’s examples and militarize several right-wing militias, particularly after he pardons January 6 “hostages.”

Lastly, Trump could try to replace civilian authorities, including the judiciary, with military ones by imposing martial law. For example, Trump could conceivably proclaim an emergency at the southern border and set up military tribunals to arrest and deport migrants. He could justify such a decision on national security grounds related to terrorism or illicit trafficking. He could designate Mexican cartels as foreign terrorist organizations and their suspected members as unlawful enemy combatants under military jurisdiction, and, in a repeat of Guantánamo, detain them indefinitely while subjecting them to torture, with a Supreme Court that might not stop him as it did Bush. It would be up to the Supreme Court to rule that the president had exceeded executive authority. Fascist history teaches us that a successful imposition of martial law or state of siege directed against citizens perceived as external enemies can later be used to deal with society at large. 

All these considerations have not even taken into account the possibility of the Republican Party winning majorities this November in both chambers of Congress. That would be a worst-case scenario that could accelerate, and cement, a Trumpist dictatorship. With congressional majorities, as is the case with mini-Trump Nayib Bukele in El Salvador or Nicolás Maduro in Venezuela (a dictator, albeit not a fascist one), Trump could push for constitutional amendments that could go from allowing for indefinite reelection to limiting access to citizenship rights. We would then rely on the judiciary to prevent a fascist takeover. But many federal judges were appointed by Trump, and a new term gives him the chance to shape the judicial system to his own image by flooding it with even more far-right and hyper-conservative appointees.

If implemented, all these acts would create extralegal domains that belong to the dictatorial convictions of the MAGA movement but not U.S. society as a whole. In this context, ideology will prevail over legality. As the German Jewish legal expert Ernst Fraenkel argued in 1941 regarding the Nazi assault on the legal system, the totalitarian state in Germany was twofold: both a “normative state” and a “prerogative state.” In practice, this meant that political considerations were more important than the written law. The latter only functioned normally when the Nazis did not care about the legal matter at hand. In other words, the legal theory of dictatorship aimed to make a distinction between political and nonpolitical acts. The instruments of dictatorship took precedence over the traditional judicial bodies in the case of the former, while to the latter, the old legal state still applied.

In this totalitarian context, increasingly more dimensions of society came under the regime’s discretionary power, and the rule of law was increasingly diminished. A combination of arbitrariness and efficiency in legal matters was successful in veiling the illegal “true face” of the Nazi dictatorship. Fraenkel stressed how a patina of legality promoted the legend that German fascists had accomplished a “legal revolution.” However, their dictatorship was not founded on valid laws. As Fraenkel explained, “Endowed with all the powers required by a state of siege, the National-Socialists were able to transform the constitutional and temporary dictatorship (intended to restore public order) into an unconstitutional and permanent dictatorship and to provide the framework of the National-Socialist state with unlimited powers.”

This is why declaring a temporary dictatorial government can easily lead to a more permanent one. Trump’s claim of ultra-brief dictatorial powers can easily morph into indefinite ones.

Fascist dictators were not dictatorial heads of normal states. They unleashed illegal forms of extreme repression and terror that radically turned their political systems into unlimited, irreversible dictatorships. This change was made in the name of the one who incarnated the movement and its national revolution. This is why the Nazis claimed that the highest law in Germany was not the command of the dictator but his will. The legality of the old system was in total contradiction with the new legitimacy of the fascist leader.

If Donald Trump becomes president, on January 20, 2025—the Martin Luther King Jr. holiday, of all dates—the United States might have a dictator only for that day. But this might be enough to turn the democratic world upside down.

To be sure, we have presented a nightmarish scenario—one in which Trump turns the law upside down by turning legality against itself. But this does not need to happen. It can be averted by the voters. But even if Trump wins, we would expect that his authoritarian drive could be blocked by the separation of powers and the strong institutional framework of the U.S. constitutional architecture. And yet, the danger of a Trumpist dictatorship cannot be ignored. Sadly, the U.S. legal system is not foolproof against being turned into a dictatorial regime. No president has tried this radical subversion of the law before. Trump is the first wannabe fascist leader with a real chance to do so.