May 24, 2024

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.