US Democracy Under Threat
Constitutional democracy in the United States is under attack. The second Trump administration is systematically targeting universities, courts, the press, and the legal profession—key pillars of democracy. Civil society, students, and scholars are also coming under pressure, facing intimidation that is already having chilling effects. All of this is happening at record speed, implementing what has been called an “authoritarian legal playbook.”
This thematic focus section brings together selected legal and political analyses of the second Trump presidency, featuring contributions from Kim Lane Scheppele, Vicki C. Jackson, Susan Rose-Ackerman, Aziz Z. Huq, Leah Litman, Scott Cummings, Blake Emerson, Mark A. Graber, Michael C. Dorf, Joshua Sellers, William E. Scheuerman, and many more.
Articles published in this spotlight section have been featured, among others, in the New York Times, The Guardian, and on the Rachel Maddow Show on MSNBC.
LATEST POSTS
11. July 2025
Laboratories of Authoritarianism
In Mahmoud v. Taylor, the U.S. Supreme Court expanded the 1st Amendment Free Exercise Clause to grant conservative religious parents a constitutional right to remove their children from any classroom where a teacher includes LGBTQAI+ people in the curriculum. In effect, the Court has allowed public schools to discourage mutual tolerance, parents to opt out of Equal Protection, and fringe legal strategists to continue to use children’s constitutional rights as a test case for authoritarianism. In doing so, the erosion of children’s rights becomes the foundation upon which other rights are eroded. Continue reading >>
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10. July 2025
Silencing Children’s Rights
The U.S. Supreme Court decided Mahmoud v. Taylor on June 27, 2025. In doing so, it dramatically expanded parental rights over students and education without concern for the rights of children or consideration of pedagogy and curriculum. Instead of addressing the plurality of views around sexual orientation and gender, the Court indirectly, but unsubtly, installs a traditional values framework that imposes norms of heterosexuality, religious fundamentalism and parental micromanagement of curriculum. Continue reading >>
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10. July 2025
Judicial Acquiescence to Presidential Immigration
Mahmoud Khalil, Kilmar Ábrego García, and Rumeysa Ozturk are just a few of the people against whom the second Trump Administration has openly engaged in alarming forms of immigration enforcement. There is an underappreciated way in which the Supreme Court has defanged the judiciary’s systemic ability to confront the executive branch’s illegal immigration behavior: It has failed to draw on U.S. administrative law. In doing so, it has diminished a vital structural judicial check on presidential power – one that lower courts, and even a future Supreme Court, may find increasingly difficult to deploy. Continue reading >>
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09. July 2025
The Liberal Litigation Trap
The progressive legal movement faces a harsh reality: its reliance on federal courts has become a strategic liability in an era of conservative judicial dominance. Rather than continue on its current path or abandon impact litigation entirely, liberal cause lawyers should embrace “resistance through restraint” – tactically starving conservative appellate courts of cases while redirecting their energy toward democratic organizing, state-level advocacy, and defensive litigation. Continue reading >>09. July 2025
Trump’s Final Frontier?
Trump nominated Emil Bove III, a former attorney of his, to the United States Court of Appeals for the Third Circuit. The Bove nomination signals a turn away from the Federalist Society, the signature institution of the conservative legal movement. With it, the radical forces of the New Right movement are now making inroads into the inherently conservative judiciary. This is a development that could be a key step in consolidating Trump's power. Continue reading >>
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03. July 2025
The Constitution’s Midnight
Resolving some legal issues requires drawing a line through a gray area. Others can be resolved without having to draw a line, in recognition of an old insight: that there is a dawn and a dusk does not mean there is no noon or no midnight. Whether the President had power under the Constitution to attack Iran without congressional approval is an issue that falls in the latter category, within the Constitution’s midnight: wherever a line might be drawn in harder cases, this is not one of them. Continue reading >>
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02. July 2025
Academic Freedom Mugged
The forced resignation of James Ryan from the presidency of the University of Virginia by pressure from a politically motivated U.S. Department of Justice, abetted by his opponents within the school, deals a dangerous blow to institutional academic freedom both at UVA and at every public university. Of course, universities must abide by federal civil rights laws as interpreted by courts. But Ryan’s antagonists pursue a radical reorientation of higher education away from most forms of increasing opportunities for disadvantaged students. Continue reading >>
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28. June 2025
U.S. Attacks on Iran
Israel and the United States attacked Iran in mid-June 2025 with the aim of ending its nuclear program. Iran counter-attacked. While some world leaders justified what Israel and the U.S. were doing, they did so in line with political deterrence theory, not the plain terms of the United Nations Charter. The lawful use of force in self-defense depends on an armed attack occurring. Concerns over nuclear weapons are to be resolved through treaties and negotiations. Honoring deterrence theory over the law is undermining the surest path to peace. Continue reading >>24. June 2025
From Erosion to Evisceration
Last week, the Supreme Court decided the case United States v. Skrmetti. As Ryan Thoreson has argued on this blog, the Court’s opinion rolls back existing understandings of sex discrimination in ways that will likely play out in future cases. Building on that insight, I examine how the Court narrows what counts as sex discrimination and strips the concept of stereotypes of its constitutional force. The most troubling aspects of the decision, however, appear in concurrences written by the ultraconservative members of the Court, which confine the reach of equal protection to formal legal classifications alone. Continue reading >>
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23. June 2025
The Erosion of Equal Protection
In United States v. Skrmetti, the U.S. Supreme Court voted 6-3 along ideological lines to uphold a Tennessee law banning gender-affirming care for minors, reaching that conclusion by construing equal protection jurisprudence in regressive ways. The majority reasoned that the law not only did not discriminate on the basis of sex, but did not discriminate on the basis of transgender status either. This post explains how the Skrmetti decision threatens to narrow the scope of constitutional equality protections in the United States, why it is dangerous for the equality claims of women and lesbian, gay, and bisexual people, and why it is likely to be so damaging for transgender people targeted by state and federal lawmakers in recent years. Continue reading >>
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18. June 2025
Pardons, Criminal Theory, and Political Sociology
Donald Trump’s use of the presidential pardon has transformed a constitutional power into a tool of personal loyalty and partisan retribution. Rather than correcting injustice, his pardons reward allies, shield loyalists, and punish critics. This shift reflects not only a philosophical challenge to the logic of criminal law, but also a deeper sociopolitical trend: the erosion of accountability through transactional governance. As legal boundaries blur and institutional checks falter, the rule of law itself is drawn into the orbit of authoritarian impulse. Continue reading >>
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13. June 2025
The Agonies of American Federalism
Understanding the Los Angeles Conflict in a Historical Frame Continue reading >>
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13. June 2025
Troops in L.A.
This past weekend, President Donald Trump issued a presidential memorandum that federalized National Guard troops and deployed those troops alongside active-duty marines in response to protests against his aggressive immigration enforcement operations in Los Angeles. While framed as a response to violence, the order also addresses peaceful protest. The decision to send military forces against civilians engaged in protected First Amendment activity marks a dangerous escalation, raising serious legal and constitutional concerns. Continue reading >>
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13. June 2025
The Nondelegation Case Against Trump’s New Travel Ban
Donald Trump has imposed the second travel ban of his presidential history. Despite the enormous harm it is likely to cause, many assume there is no effective way to challenge it in court. The Supreme Court's ruling in Trump v. Hawaii (2018) – addressing Trump’s first-term “Muslim ban” – probably precludes challenges based on discriminatory intent. Nonetheless, there is an alternative path to striking down the new travel ban: the nondelegation doctrine. This doctrine sets limits to Congress’s delegation of legislative authority to the executive. Continue reading >>12. June 2025
Power, Profit, and Washington’s Paradox
The Trump administration has been accused of corruptly placing private financial benefit above the public interest, most recently in President Trump’s acceptance of the gift of a Boeing 747 from Qatar for his use as Air Force 1, and invitations to dinner at a private club and to a private White House tour, offered as perks for those who invested substantial sums in his Stablecoin. Although, here, the President’s self-enrichment is blatant, more troubling are his policies aimed at dismantling safeguards against corruption at home and abroad. These reveal a deep contradiction in the warring goals of those currently governing in Washington; a contradiction that may eventually burst into the open. Continue reading >>
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07. June 2025
U.S. Sanctions on the International Criminal Court
Since the negotiation of the Rome Statute, U.S. relations with the Court have zig-zagged between quiet support and open hostility. With President Trump’s return to office, we are back to confrontation. On June 5, Secretary of State Marco Rubio made sanction designations of four ICC judges – two of whom authorized the investigation into Afghanistan and two of whom approved the Netanyahu and Gallant arrest warrants. This post describes these developments and situates them within the broader context of U.S.-ICC relations. Continue reading >>
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06. June 2025
Using Immigration Court as a Trap
Immigration and Customs Enforcement (ICE) has begun apprehending noncitizens at immigration court – where individuals appear to seek humanitarian relief or defend against deportation – immediately after the government moves to dismiss their case. Immigrants and their attorneys are increasingly reporting that ICE, in coordination with government lawyers, is detaining individuals as they exit court following such dismissals. Rather than providing a reprieve, dismissal is now being used to facilitate detention and potentially summary deportation, raising serious concerns about due process and adherence to governing statutes in the United States. Continue reading >>
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03. June 2025
Trump’s Threat to Nonprofits
The administration of President Trump is threatening nonprofits with the loss of tax-exempt status in an attempt to force them to conform their activities to policies favored by that administration. The threats are based on shaky legal grounds, and nonprofits have both constitutional and statutory bases for countering them. Nevertheless, these threats are significant, especially when combined with the administration’s efforts to cut government funding for many programs operated by nonprofits. And at the same time, the U.S. Congress is considering reducing the benefits of tax-exempt status in many ways, primarily to help pay for tax cuts benefitting wealthy individuals and corporations. Continue reading >>
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28. May 2025
A Blow to Our Constitutional System
A little-noticed Supreme Court order may pave the way for a dramatic expansion of presidential authority—overturning a 90-year-old precedent and weakening the independence of key regulatory agencies. In the hands of a would-be autocrat, the Supreme Court decision has delivered a serious blow to the constitutional system. Continue reading >>
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16. May 2025
Whom Is Citizenship For?
On Thursday, May 15, the US Supreme Court heard oral arguments in “the birthright citizenship case.” Instead of deciding on the constitutionality of President Trump’s executive order (EO) banning birthright citizenship for certain classes of individuals, the Court is asked to decide whether lower courts exceeded their authority in placing a nation-wide injunction on the government’s order. But this doesn't make the decision any less significant. Continue reading >>
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16. May 2025
Undoing the American Rechtsstaat
Donald Trump’s return to the forefront of U.S. politics brings an urgent constitutional question back into focus: Can the American administrative state survive another presidency driven by executive absolutism? Recent developments before the Supreme Court, especially in Trump v. U. S., suggest that long-standing norms and legal safeguards are under siege. This post explores how a second Trump term might exploit structural vulnerabilities in U.S. public law, with consequences that extend far beyond American borders. Continue reading >>
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06. May 2025
Trump 2.0 as ‘Dual State’?
Donald Trump’s radicalized efforts to transform US constitutional democracy into personalized executive-centered rule have again generated a predictable avalanche of invocations of Carl Schmitt. Less predictably, recent political commentators have turned to one of Schmitt’s contemporary critics, the mid-century socialist jurist and political scientist, Ernst Fraenkel, claiming that his account of the Nazi “dual state,” in which rule-based normative and discretionary prerogative legal spheres uneasily coexisted, provides a useful template for making sense of Trump 2.0’s highly selective rendition of legal fidelity. Continue reading >>30. April 2025
Harvard Under Attack
Since Donald Trump took office as the 47th President of the United States of America, hardly a week has gone by without academic institutions coming under attack. The U.S. government is now claiming that Harvard - and other universities - are violating Title VI of the Civil Rights Act by serving as “breeding grounds for anti-Semitism”. This raises numerous constitutional questions. Continue reading >>
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30. April 2025
The Legal Authority (or Lack Thereof) for Trump’s Tariffs
The Trump tariffs have increased the average weighted U.S. tariff to 23% – a ten-fold increase from a year ago. Outside observers have been puzzled about how one person, even the U.S. president, has the power to single-handedly enact such sweeping changes to the U.S. and global economy. In fact, President Trump may not – and in my view, does not – have the power to impose most of his tariffs. Continue reading >>25. April 2025
Outrage Matters
Is the Supreme Court of the United States Getting Fed up with Donald Trump? Continue reading >>11. April 2025
The U.S. President’s Electoral Power Play
On March 25, President Trump signed an executive order (EO) purporting to restructure American election administration. The ironically titled “Preserving and Protecting the Integrity of American Elections” EO sets out to, among other things, require those registering to vote in federal elections to present documentary proof of citizenship, and threatens to penalize states that accept late arriving ballots (i.e., mail ballots that are sent prior to, yet not received until after, Election Day). The EO has several legal deficiencies and much of it should be invalidated by the federal judiciary. Continue reading >>
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10. April 2025
Gaming Procedure, Gutting Due Process
The Trump administration has admitted that sending Abrego Garcia to a supermax prison in El Salvador known for human rights abuses was an “administrative error” but contends before the U.S. Supreme Court that there is nothing a federal court can do about that. As I shall explain, the Solicitor General’s argument ultimately rests on the claim that the president who frequently boasts about his abilities as a deal maker is a lousy negotiator. Continue reading >>
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28. March 2025
The Trump Administration’s Attack on Knowledge Institutions
Time for courage – and resistance Continue reading >>26. March 2025
Stopping Autocratic Legalism in America – Before It Is Too Late
President Donald Trump’s recent speech to the Department of Justice was meant as a declaration of war against lawyers. His words made clear that the most effective way to consolidate autocracy is by systematically dismantling the independent centers of power that support a healthy democracy, including the independent public prosecutor. As the Executive Orders targeting law firms underscore: the entire legal profession is next. This is no coincidence. Continue reading >>25. March 2025
A Constitutional Crisis? Maybe. A Constitutional Revolution? Likely.
Crisis rhetoric has become pervasive in the United States and Israel, although much of it is a hyperbolic response to the polarization currently dominating these nations’ politics. What seems clearer to us is that a process is underway in both countries that may very well culminate in a constitutional revolution. Such a development might or might not be deemed crisis-worthy, but it would mean that something profoundly significant had changed in the way the business of governing is conducted in each nation. Continue reading >>
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25. March 2025
The Death Knell for American Free Speech Tradition
In a case that has received global attention and reproach, Mahmoud Khalil, a lawful permanent resident of the United States and recent graduate of Columbia University (another target of the Trump administration’s ire), was arrested on 8 March by Immigration and Customs Enforcement agents in front of his apartment in New York and subsequently transferred to a detention facility in Louisiana. In this blog post, my aim is to show that the case of Mr. Khalil implicates perhaps the most sacrosanct of American constitutional rights: free speech. Continue reading >>
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24. March 2025
International Law Under Pressure
In this blog post, we document and analyse the numerous apparent breaches of international law that have occurred within the first six weeks of the 2025 Trump administration. What began as an informal discussion at the Lauterpacht Centre for International Law has evolved into this analytical overview. We believe this documentation serves both academic purposes and potentially supports future legal proceedings. While defenders of these actions will undoubtedly offer justifications for what we identify as clear breaches of international law, our analysis aims to provide an assessment based on established international legal principles. Continue reading >>26. February 2025
Reading Project 2025 as a Manifesto
Manifestos have very often prefigured constitutional crisis, revolution, the overthrowing of legal orders, and set the terms of what follows. Project 2025, or the 2025 Presidential Transition Project, can be read as a manifesto, and one that is now well on its way to being implemented. Examining it through the lens of constitution (re)making sets out some of the terms in which it could be opposed, including by counter-manifesto. Continue reading >>
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21. February 2025
Trump’s Counter-Constitution
“He who saves his Country does not violate any Law.” Continue reading >>22. January 2025
Trump and the Folklore of Capitalism
How can we make sense of the return of Donald Trump, who again convinced enough US voters of his populist bonafides? Populist authoritarianism has made inroads around the world. Only Trump’s version, however, probably brings together so much wealth and power, with super-rich business executives now at the helm. Here I tap a brilliant but neglected book, The Folklore of Capitalism (1937), by the legal scholar and New Deal trustbuster, Thurman Arnold (1891-1961), to understand this remarkable development. Folklore of Capitalism helps explain Trump’s wide appeal, despite the electorate’s disagreements with many of his policy preferences. Continue reading >>
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26. March 2018