Between anti-immigrant zeal and a general disdain for any rules whatsoever, the Trump administration has shredded the constitutional order that makes government legitimate.
This is now a legitimacy crisis.
There are different philosophical approaches to government legitimacy, but in the United States, the most straightforward explanation is the social contract. Often associated with Enlightenment philosophers such as Locke and Rousseau and extremely influential with US founders, the social contract refers to the idea that the government requires the consent of the governed to be legitimate.
Crucially, in exchange for this consent, the government accepts certain limits on what it can do. In other words, the government also has to follow the rules.
The US has suffered crises of legitimacy before. Arguably, the 1964 Civil Rights Act emerged from just such a crisis. At a base level, the act conceded that to be legitimate, the government needed to actually recognize the rights of all its citizens – not just those of a certain race. It didn’t fix everything, but it was an important step in creating a stronger social contract for the next generation.
The Trump administration, however, has reversed course on civil rights, abandoned limited government and eviscerated the social contract beyond recognition. From defying courts, to attacking judges, to capriciously revoking legal immigration statuses, to executing suspected drug smugglers, there is no shortage of examples.
One example that deserves a lot more attention than it is currently receiving, however, is the horror story of Trump’s collaboration with a megaprison in El Salvador.
To summarize, in March, the Trump administration forcibly sent more than 250 people, mostly Venezuelans accused of having ties to the Tren de Aragua gang, to El Salvador to be detained in a paid arrangement with Salvadorian president Nayib Bukele. Investigative reporting quickly confirmed that the entire operation – ostensibly to target dangerous criminals – was based on lies: only a small percentage of the targets had any criminal record at all, accusations of gang affiliations came from spurious evidence, and many of the detainees had followed the rules to enter the country legally.
Nonetheless, instead of enjoying the rights guaranteed by US law, they suddenly faced imprisonment and alleged torture. Lower courts tried to halt the flights, but the Trump administration acted anyway.
All of this would be horrifying enough as an isolated incident, but the legal saga surrounding the case has further disturbing implications. At first, the administration justified its actions through a controversial 18th-century law allowing the government to expel “alien enemies” in times of war – even though the country was not at war, and these were not “alien enemies”.
However, the administration soon switched to a different argument that might be described like this: it doesn’t matter how many laws we broke – as long as the victims end up in a prison in a foreign country, US courts have no power to stop us. Also, we may do the same to US citizens.
When the Trump administration first made these claims, news agencies covered them with much alarm. However, commentators since have avoided stating an uncomfortable truth: the administration was right. Apparently, it didn’t matter how many laws they broke. No one stopped them, nor have they faced any consequences.
Significantly, the supreme court has played a critical role in this legitimacy crisis, not only by giving the Trump administration an unprecedented series of wins – often employing mind-boggling logic and blatant distortions of plain text – but also gutting the mechanisms that courts have to stop the executive branch when it gets caught doing illegal things.
Here the battle over injunctions is revealing. In normal times, if the government gets caught doing something illegal, then judges have the power to issue an injunction to make the government actors in question stop. Government officials may appeal to a higher court, but in the meantime, the injunction prevents them from continuing to do harm while the case plays out.
Now, think about a reality where injunctions don’t exist. If courts can’t issue an injunction to stop the government from doing illegal things, then no matter how blatantly the government is violating people’s rights, it can keep doing it unimpeded so long as the case stays tied up in appeals – a process that often takes years. In this scenario, law exists in theory, but there are virtually no limits to what the government can do in practice.
This is shockingly close to the reality that the supreme court has now created. By rushing to overturn injunctions with no regard to who is being harmed, as well as creating seemingly arbitrary technicalities to prevent future injunctions, the message from the supreme court is clear: It doesn’t matter how many laws they broke. Now that Trump is in office, courts are simply not supposed to stop executive officials from putting Trump’s agenda into practice, regardless of how unlawful those practices might be.
The extreme inability of our government to police itself becomes even clearer when it is placed alongside Brazil – the second-largest democracy in the Americas – where the former president Jair Bolsonaro was recently convicted for an attempted coup: after losing re-election in 2022, Bolsonaro tried a variety of tactics to stay in power, including inciting his followers to swarm government buildings to physically stop the peaceful transfer of power. If that sounds familiar, that’s because it was, indeed, strikingly similar to what Trump did in the January 6 riots after losing the 2020 election.
Now, consider the difference in how our respective constitutional systems handled this. In the US, the supreme court not only blocked any potential trial for Trump’s role in the highly visible attempt to overthrow the government; it also took the opportunity to give him sweeping immunity for just about anything else. According to the logic of the majority decision, it doesn’t matter how many laws he broke. Being president is hard, and it is even harder if he has to worry about getting in trouble for breaking the law. So he should just have a virtual license to commit crimes. That way, he can take “vigorous, decisive” action.
The Brazilian supreme court took a strikingly different approach. Apparently, it does matter how many laws Bolsonaro broke. Prosecutors presented strong evidence that he broke the law, so the supreme court decided that he should be prosecuted.
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Tellingly, this infuriated the Trump administration, which heaped criticism and sanctions on Brazilian judges in response. Brazilian courts refused to back down, however, and the trial ultimately resulted in a conviction.
After watching this play out, I can’t help but wonder: what would it look like if my country had the courage to hold a lawless executive accountable?
Here I want to be clear that in posing this question, I am calling for peaceful action. People will have to decide for themselves what this peaceful action looks like, though there is strength in numbers, and I think those numbers exist. As I have written previously, the nationwide protests against capricious and unlawful immigration raids are a testament to how many people are already fed up, and looking for ways to remind the government that it owes us rights.
I also don’t think that questioning the government’s legitimacy right now is radical, partisan or even unpatriotic. In fact, nothing I am saying here contradicts what I was taught about legitimate government in my fifth grade social studies class at a conservative, patriotic public school in rural Texas. It is simply our civic duty to call out the government when it strays from the social contract.
What’s giving me hope now
In the classic Latin American protest anthem Me Gustan los Estudiantes, the celebrated Chilean composer Violeta Parra lauds the indomitable spirit of students. “Long live the students!” the song declares. They are the “garden of our joy” because they fearlessly defend truth, even when those in power try to force them to accept lies.
Students give me hope as well.
Overwhelmingly, the students that I have worked with over the years have shown themselves to be insightful thinkers with an unyielding dedication to truth, empathy, and solidarity. This is hopeful for many reasons, not the least of which being that this seems to terrify the people in power. Indeed, the same architects of our legitimacy crisis are also waging an aggressive campaign to squash campus protests, restrict institutional autonomy, and generally abolish academic freedom. Clearly, academic institutions have the potential to serve as a counterweight to government abuses. Otherwise, why would a lawless government be trying so hard to suppress us?
Sadly, too many university leaders are now sacrificing academic legitimacy by caving to government pressure. The situation is bleak on this front as well, yet the battle is far from over.
Our best hope: we need to be as fearless as our students.