Then-presidential nominee Donald Trump attends a campaign event sponsored by conservative group Turning Point Action, in Las Vegas, 14 October 2024. REUTERS/Carlos Barria

US President Donald Trump has begun his second term in autocratic fashion, pushing US constitutional limits and attacking civil society and the legal profession. Global Insight assesses how the country has begun the essential task of protecting its democracy and rule of law.

Since his inauguration on 20 January, President Trump has issued more than 130 executive orders and memoranda, asserting sweeping executive authority to override laws passed by Congress. He has attempted to end birthright citizenship and ordered the dismantling of the Department of Education and the US Agency for International Development (USAID), despite their congressional mandates.

A significant amount of litigation has followed as lawyers challenge the legality of Trump’s actions, setting up a showdown at the US Supreme Court that is likely to define both the President’s second term and the future of American democracy.

President Trump has given billionaire donor Elon Musk unprecedented authority to restructure the US civil service, leading to the dismissals of thousands of federal employees. A broad coalition of states has sued, alleging that the firings by the Musk-run Department of Government Efficiency (DOGE) are unlawful. A White House spokesperson has said Musk is ‘complying with all applicable federal laws.'

‘Trump’s actions raise important rule-of-law questions and certainly constitutional questions,' says Ryan J Coyle, Co-Chair of the IBA LGBTQI+ Law Committee. ‘What is the executive’s power to unilaterally make these changes? How broad is the executive power, really, to make and enforce executive orders without Congress, or even to ignore laws that Congress has passed, that prior presidents have signed?’

Autocracy by law

Commentators warn that autocracies today emerge not through coups, but by gradually manipulating laws and institutions – a pattern seen in President Trump’s second term so far. ‘People tend to think that when they have a long-term, stable democratic government, that it’s fine until you see tanks in the streets, or you see a general collapse of order, or you see the rise of private violence,' says Kim Lane Scheppele, the Laurance S Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs. ‘The way that reasonably functioning democracies fall into autocracy these days is really by law,' says Scheppele, who’s a scholar of the collapse of democratic systems in Russia and Hungary.

President Trump’s executive orders represent a direct assault on the mechanisms that traditionally limit presidential power, Scheppele says. ‘The way that happens is, first of all, putting out outrageous policies. Under cover of that outrage, what’s happening is a lot of technical changes,' she explains.

By way of such policies, the President has specifically targeted transgender persons at the start of his administration, for example. ‘Trump’s claim of broad executive power, combined with what seems to be a particularly anti-trans animus, make the subject of the limits of executive power all the more urgent for the LGBTQI+ community,' says Coyle, who’s a partner at law firm Bilzin Sumberg in Miami.

President Trump has further ordered a broad rollback of diversity, equity and inclusion programmes intended to open doors for underrepresented minority groups. The administration calls these initiatives ‘radical and wasteful.'

Elsewhere, Trump has gutted oversight bodies that are tasked with finding fraud and waste. He has disbanded or crippled federal advisory panels designed to provide outside professional guidance to government. ‘The Justice Department and the White House have been dismantling or pausing a lot of the tools that the federal government use to combat corruption,' says Daniel Alonso, Regional Representative North America on the IBA Anti-Corruption Committee. ‘In terms of a commitment to anti-corruption, the silence is deafening.’

Among President Trump’s many executive orders is a freeze on enforcement of the Foreign Corrupt Practices Act (FCPA), a move that effectively gives a green light to foreign bribery by US businesses. The White House’s view is that the FCPA has ‘been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner’ that harms US interests. The order freezing FCPA enforcement is ‘going to mean a lot more business for America,' Trump said on signing it. ‘You start to ask, does this administration have any intention to combat actual corruption?’ says Alonso, who’s also a shareholder at law firm Vedder Price in New York.

The courts enter the fray

‘We’ve seen that the second Trump administration is contemptuous of limitations that Congress has placed on the executive branch,' says Michael C Dorf, a law professor and constitutional scholar at Cornell Law School. ‘What has been most notable so far is the sheer number of ways in which the administration has ignored statutory limits on its authority.’ Indeed, many of President Trump’s early executive orders face legal challenges on the grounds that they violate acts of Congress or provisions of the Constitution, including civil rights guarantees.

Richard Painter, a law professor at the University of Minnesota and former chief White House ethics lawyer, warns that President Trump is pushing an extreme version of the ‘unitary executive,' a fringe constitutional theory that would give the president near-total control over the executive branch. ‘This is the path of authoritarianism. It is extremely dangerous,' Painter says.

‘All of these injunctions have always been unconstitutional and unfair. They’re led by partisan activists who are trying to usurp the will of this President, and we’re not going to stand for it,' White House spokesperson Karoline Leavitt said in March.

After US District Judge James Boasberg issued a restraining order against Trump’s removal of alleged Venezuelan gang members in mid-March, the President called for his impeachment and members of the House of Representatives promptly began proceedings.

This led to Supreme Court Chief Justice John Roberts issuing a rare statement appearing to caution President Trump. ‘For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,' Roberts said. ‘The normal appellate review process exists for that purpose.’

‘It is not unusual for presidents to disagree with court rulings, but the proper response is to respectfully disagree and pursue appropriate appellate remedies, and, ultimately, to abide by a Supreme Court ruling,' says Steven Richman, Chair of the IBA Bar Issues Commission. ‘Where the Court makes a ruling on interpretation of a statute, then a remedy may be to amend the statute. It is not to engage in ad hominem attacks on judges.’ Richman, who’s a member of law firm Clark Hill in New Jersey, adds that ‘this cannot be a partisan issue and rule of law must be respected.'

Coyle says we’re now at the beginning of seeing how the Trump administration will – or won’t – respect judgments made by courts, especially if those rulings run contrary to the President’s positions. Given the administration’s rhetoric, there’s a question as to what would happen if the President simply refused to honour a court ruling.

A preview of what such a conflict might look like came in mid-March in the case presided over by Chief Judge Boasberg, which concerned the Trump administration’s decision to deport a group of 261 men to a prison in El Salvador. Trump had invoked the Alien Enemies Act, a 1798 law previously only used in wartime, to justify the decision in respect of 137 of the deportees, with administration lawyers claiming – without providing details – that these men were members of the Venezuelan gang Tren de Aragua.

Nonprofit legal advocacy groups the American Civil Liberties Union (ACLU) and Democracy Forward filed suit, seeking a temporary restraining order. The plaintiffs said many of the men on the flights had no connection to Tren de Aragua. President Trump’s use of the Alien Enemies Act violated the plain language of the statute and deprived the men of their individual rights to due process, the plaintiffs argued.

In an emergency hearing, Chief Judge Boasberg issued a temporary restraining order and directed the Trump administration to return two aeroplanes with the Venezuelan men onboard to the US. ‘You shall inform your clients of [the Order] immediately, and that any plane containing [members of the class] that is going to take off or is in the air needs to be returned to the United States […] However that’s accomplished, whether turning around a plane or not [dis]embarking anyone on the plane […] I leave to you. But this is something that you need to make sure is complied with immediately,' Boasberg instructed Justice Department lawyers from the bench.

The White House claimed, among other things, that the Judge’s order was unenforceable because the flights by then were over international waters. The administration maintained it hadn’t ‘refused’ to comply with the order. A third aeroplane later departed for El Salvador. Images of the men with shaved heads and in prison garb, bent over in crouching positions and surrounded by armed guards, were later broadcast by El Salvador’s presidential press office.

‘The Government’s decision to hastily dispatch flights as legal proceedings were ongoing […] implied a desire to circumvent judicial review,' Boasberg later wrote on 24 March, rejecting a Trump administration request to lift his restraining order.

The administration claims the president has ‘sole and unreviewable discretion’ to invoke the Alien Enemies Act and ‘to determine whether an invasion has taken place.' The ACLU and Democracy Forward counter that ‘if the President can designate any group as enemy aliens under the Act, and that designation is unreviewable, then there is no limit on who can be sent to a Salvadoran prison, or any limit on how long they will remain there.'

All eyes on the Supreme Court

The deportation case is likely to find its way to the US Supreme Court, along with others in which President Trump is asserting expansive executive authority.

Presidents have defied the courts in the past. Famously, President Andrew Jackson refused to heed a Supreme Court judgment in 1832 and ordered the forcible relocation of Native Americans from their homelands in the southeast US to western reservations in the ‘Trail of Tears’.

The question many are wrestling with now is whether America’s democratic institutions can withstand the pressure. Much will depend on whether the US judiciary can maintain its independence and serve as a check on President Trump’s executive power. The Supreme Court has a six-to-three conservative majority, but Chief Justice Roberts and Associate Justice Amy Coney Barrett have shown a willingness to side with the three liberal justices to deliver five-to-four opinions.

In any case, a court’s enforcement of contempt penalties – fines or imprisonment – would rely on cooperation by the executive branch.

Congress could revise any underlying statutes to resolve a conflict or exercise its power to impeach the president. That’s unlikely, at least for now, given the evenly-divided party composition of Congress – removal of an impeached president requires 67 votes in the 100-seat Senate.

The bottom line is there’s not much the Supreme Court can do. As President Jackson reportedly said in the Native American removal case, ‘[Chief Justice] John Marshall has made his decision; now let him enforce it.’ However, the Trump administration could suffer electoral consequences if public opinion sides with the Court – which may ultimately be needed to counter autocracy.

Public backlash

Public reaction in the US to President Trump’s autocratic moves has been dramatic. The establishment in Washington, DC, has been in an uproar as Musk’s DOGE has wreaked havoc across the federal workforce. Sporadic street protests have broken out in cities across the country. Constituents have flooded the phone lines of Congress. And Republican members of Congress have been forced to abandon town hall meetings by angry crowds in their districts.

‘We’ve seen a groundswell of grassroots energy since Donald Trump was sworn in on 20 January, from opposing his unqualified nominees to his attempts to make drastic cuts to essential programmes,' says Christina Harvey, Executive Director of Stand Up America, a national network of progressive activists who have opposed Trump since 2016. ‘This administration thrives on complacency, but Americans are more motivated than ever to push back against Donald Trump’s […] authoritarianism.’

Other groups including Indivisible and MoveOn are seeking to mobilise mass campaigns to oppose Trump’s perceived abuses of office. A nationwide ‘Hands Off!’ protest rally is scheduled for early April.

The AFL-CIO federation of labour unions, which represents 15 million workers and is suing the Trump administration in court, has launched an activism campaign called the ‘Department of People Who Work for a Living’ aimed at countering Musk’s takedown of federal agencies. ‘The government can work for billionaires, or it can work for working people – but not both,' AFL-CIO President Liz Shuler said in a statement.

Ultimately activism and protests only matter insofar as they drive people to vote. And political strategies premised on attacking President Trump for his autocratic manoeuvres have fallen short in the past. Polling data and the results of the 2024 presidential election showed most voters cared more about ‘kitchen table’ issues than warnings about Trump’s autocratic intentions.

‘Shuttering USAID, using government power to attack political opponents, firing indiscriminately, degrading the civil service, releasing [those jailed for the attack on the US Capitol on 6 January 2021], or blaming Ukraine for the Russian invasion all are a combination of unwise, unethical, illegal, or unconstitutional. But none resonate much with key voters,' the think tank Third Way said in a statement released in mid-March. ‘It is a painful irony that while our very democracy is at stake, a focus on “democracy” (and the trashing of democratic norms) simply won’t save it.’

Instead, the movement to counter Trump will need to build a compelling case in the court of public opinion by focusing on issues that affect the lives of voters, according to Third Way.

President Trump’s political base has applauded his attacks on civil rights, the rule of law and constitutional norms. Republican members of Congress who might privately dissent from the President’s autocracy are pressured to carry the party line or face getting blasted by Trump on social media and threatened with primary electoral challenges.

Democrat opponents of Trump appear to be banking on the 2026 midterm elections, now 18 months away. Typically, the party out of power in the White House tends to win seats in the House of Representatives two years later during these elections. While it’s too early to entertain predictions for voting in late 2026, there are signs that President Trump’s power grab in the first 100 days of his second presidency could prove to be an overreach.

President Trump’s approval rating, initially positive after his historic political comeback in 2024, has slipped into negative territory. As of mid-March, on average 50 per cent of Americans disapproved of Trump’s job performance, compared to 47 per cent who approved, according to tracking by Nate Silver, a US statistician.

Negative sentiment is starting to show up in financial markets, which some observers believe will chasten President Trump’s autocratic instincts. A burst of bullishness on Wall Street about the prospects for new tax cuts and reductions in government regulation under the new administration has given way in the context of stop-and-start tariff threats and renewed inflation signals. Major US stock market indices lost ten per cent of their value in late February and early March, moving into what financial analysts called a ‘correction’ before rebounding.

With inflation on the rise again, there’s been a reversal of voter perceptions held during President Trump’s first term. He’s no longer seen by the public as handling the economy well. According to a mid-March poll by the pro-Trump television outlet Fox News, 56 per cent disapproved his stewardship of the economy, compared to 43 per cent who approved.

‘People are starting to worry about the economy,' said Robert Rubin, a former US Treasury Secretary, speaking at an investor conference in New York in early March. The combination of Trump’s actions on tariffs and immigration, ‘what we’re doing with DOGE, which is doing tremendous damage to government […] all of that can only have adverse effects on confidence and predictability,' said Rubin, a former co-chairman of Goldman Sachs who served in the Clinton administration. ‘And all this talk about retribution – of which there has been a lot – feeds that lack of confidence and unpredictability.'

William Roberts is a US-based freelance journalist and can be contacted at wroberts3@me.com