By Noah Feldman
A PRESIDENT’S first 100 days are traditionally measured by how much he’s created and accomplished through legislation, leadership, and executive action. Donald Trump’s first 100 days demand to be evaluated in terms of how much he’s destroyed.
By that terrible standard of shock and awe, Trump’s destruction is historic — by far the worst first 100 days since Franklin Delano Roosevelt made it a thing in 1933. Trump has announced, reversed, and re-announced tariffs poised to tank the economy and the markets. He’s upended 80 years of US global leadership in international security and cooperation. He’s gutted agencies and departments devoted to health, education, science, the environment and other forms of lifesaving.
Yet as shocking and self-destructive as these actions are, they don’t represent the most serious danger Trump poses to the survival of the United States of America as a republic. That distinction must be reserved for Trump’s devastating, unrelenting attacks on the Constitution and the rule of law.
After 100 days of Trump’s war on the law itself, it’s time for what the military calls a battle damage assessment. We need to know how much harm has been done to understand how to defend against the onslaught and prepare for the epochal battles yet to come.
This war is definitively not over and we, the people, don’t have to lose it. But we do have to face facts analytically and calmly. We need to set aside our appropriate moral outrage to the extent possible. Only by doing so can we hope to strategize victory rather than prematurely mourn a defeat that is not inevitable.
In essence, the damage looks like this: Trump is trying to establish his authority over that of the courts and Congress. To get there, he’s using the tactic of a constant-yet-unsteady pattern of illegal actions. His main targets are a combination of vulnerable people who have a hard time fighting back and high-profile elites whom he hopes to subordinate and humiliate. When blocked by the courts, Trump repeats the same actions under supposedly different authority. He retaliates against anyone who objects. Because the courts are the main vector of resistance, Trump and Vice-President JD Vance have verbally attacked judges. Most recently, the FBI went so far as to arrest a Wisconsin judge for allegedly allowing a man sought by ICE to leave her courtroom through a side door.
Let’s start with Trump’s overall strategic objective, which is to make himself seem like he is — and thus actually become — the ultimate authority in the US, above Congress and the courts. His main tool is unilateral executive action.
The whole theory of executive orders (of which he’s signed nearly 140) is that the President is exercising either a power that the Constitution gives him or power specifically delegated to him by Congress. It was in that framework that former President Bill Clinton’s adviser Paul Begala offered his pithy near-haiku about executive orders: “Stroke of the pen. Law of the land. Kind of cool.”
What makes an executive order law is specifically that it is issued lawfully. If an order violates the law, it’s an arrogation of illegitimate power — a step toward autocracy in a system where Congress, not the president, possesses the power of legislation.
Trump’s executive orders have openly violated the Constitution and federal laws from the get-go. Take as exemplary the order purporting to end birthright citizenship, which is guaranteed by the plain meaning of the Fourteenth Amendment.
The order, issued on Trump’s first day in office, claims to “interpret” the Fourteenth Amendment as not extending “citizenship universally to everyone born within the United States.” But the Supreme Court, not the president, has the final word in interpreting the Constitution. The fact that Trump’s interpretation is obviously wrong (and intended to terrify children of immigrants) only dramatizes how bad this is.
There have been many more clearly unlawful orders, on topics from voting rights to deportations under the 1798 Alien Enemies Act to, God help us, low-flow showerheads. (The last of these included the astonishing statement that legal process was unnecessary “because I am ordering” the action.)
The good news in the battle damage assessment is that courts have been blocking the unlawful orders. Just Security’s Trump litigation tracker records 212 cases against the administration so far. In many of these, lower courts have paused unlawful action. Gradually, these cases are making their way to the Supreme Court.
These cases also reflect that Trump has taken a lot of unlawful actions without even bothering to issue an executive order explaining or justifying why. Firings of government employees have been one sort of unlawful action, ranging from commissioners of independent agencies who are protected by federal law from presidential removal except for cause, to rank-and-file civil service members whose protections come from different laws. Equally consequential have been unilateral cuts or freezes to government grants and contracts established by law.
In these cases, the courts have also been blocking those that are clearly unlawful. But Trump has responded with new firings and freezes, often claiming to be doing so under different legal authority than the courts have already barred.
The result is a flood-the-zone method of attack. When you’re subject to unlawful administrative action, you can be fairly sure that even when you win in court, your rights will continue to be violated.
When noncitizens are arrested and sent out of the country without an opportunity to speak to a lawyer (a practice that now appears to have extended even to some citizens), it creates terror among expansive communities of immigrants, who almost by definition are among the least powerful members of society.
When Trump is targeting powerful actors like big law firms or Ivy League universities (such as my own), the point of flooding the zone is to tell elites that he will go after anyone he doesn’t like — and that even if they win in court, he won’t stop making their lives extremely difficult in every way possible. This explains why so many rational people in powerful institutions have chosen to not take on the Trump administration directly: their victories might end up being Pyrrhic. Trump’s unrelenting approach to attacking even the powerful is therefore more than just score-settling. It is also a clever way to get past the illegality of his actions.
Going after the courts is a crucial part of this tactic. Trump’s overall goal is to warn the Supreme Court, which ultimately stands for the rule of law, that if it stands up to him, he will destroy the court itself. The justices aren’t vulnerable individually. But their institution is. That’s because, under the Constitution, the courts can only order the president to do what they say. They have no force of their own except their inherent legitimacy as exponents of the law. If the Supreme Court issues an order and Trump ignores it, all the court can do is declare him in contempt. Congress could impeach and remove the president — but after two impeachments in the first administration failed to yield a conviction, it’s uncertain at best whether that would happen.
Trump has been inching closer to directly violating a court order. Two judicial contempt investigations are currently in progress against administration officials for doing so. An overt Trump administration refusal to follow a court order could well trigger a constitutional crisis.
The Supreme Court would much prefer that the confrontation doesn’t happen, and that Trump at least give the impression that he is following the law — even if he does so imperfectly. But if the showdown must happen, the court will want it to be on the terms most favorable to the justices. They will want it to involve the undisputed rights of US citizens. They will want to be able to vote unanimously against Trump. That’s because they know that in a climactic confrontation, if Trump doesn’t back down, the rule of law itself will be broken.
The courts will need allies in such a battle. One perhaps unexpected form of alliance may come from the financial markets. Trump’s threats to fire Federal Reserve Chair Jerome Powell were threats against the rule of law and the Constitution as it is presently interpreted. It’s a good sign that Trump backed down, and not just for the markets. At the same time, it would be naïve to imagine that the markets would fully protect against a constitutional crisis. Markets function, albeit less efficiently, in countries where the law protects private property and transactions only selectively, and where autocrats can break the rules almost at will.
Republicans in Congress might be tempted to side with a unanimous Supreme Court against Trump if it looks like doing otherwise would harm the party in the midterm elections. For Trump to ignore an order from a court in which he appointed one-third of the justices and where another third are also Republican appointees might be too much for some in the GOP to tolerate. Again, however, it would be a mistake to rely too confidently on that scenario.
That leaves the people. The rule of law exists in the US only because we have a Constitution that traces its legitimate authority back to popular sovereignty. We need to brace ourselves to back the Supreme Court in a potential fight with a president who thinks he can run roughshod over the law. If that day comes, there will have to be a million or more people on the streets of Washington, siding with the Constitution and with the body that has the ultimate responsibility to interpret and apply it. Trump’s 100 days have dramatically raised the possibility of such a confrontation taking place. The battle lines are being drawn.
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