Commenting on a post of mine, co-blogger Scott Sumner offered a striking reflection:
“I feel sort of like Rip Van Winkle, like I fell asleep in the USA and woke up to find myself living in a banana republic.”
According to a Wall Street Journal story, some members of Congress are beginning to start waking up to the current president’s power grab (Aaron Zitner, Siobhan Hughes, and Gavin Bade, “Powers of Trump and Congress Collide as Government Shutdown Nears,” March 1, 2025). Budget and tariff policy are two areas where some suspect that Congress should not have delegated so much power to the president.
It could happen here, “it” being despotism of the harder sort than the Tocquevillian soft sort that we have already gotten used to. Instances of the problem are too numerous to be listed here. My post of yesterday suggests that one man has apparently been granted the power to close America to the rest of the world if he feels like it. Let me mention three other incidents that seem symptomatic of a general rejection of anything that looks like the remnants of classical liberalism.
One relates to the disgraceful humiliation of the Ukrainian president by President Donald Trump and his vice-president in the White House on February 28 (see “Trump-Zelensky Meeting Implodes, Threatening Hopes for Peace,” Wall Street Journal, February 28, 2025; and “Trump, Vance and Zelenskyy Spar over Russian War in Tense Exchange: ‘Very disrespectful,’” Fox News, February 28, 2025). Trump repeated on his social media something he had said about Zelensky during the meeting:
He disrespected the United States of America in its cherished Oval Office.
If he heard this naïve glorification of the state, H.L. Mencken must be turning and laughing out loud in his grave. The king of Spain “tramples or tries to trample the dignity of a people,” the late dictator Hugo Chavez said referring to the Venezuelan people, his people, that is, himself, after the king had told him to shut up in a meeting.
As a second example, some officials in the president’s entourage have declared that the president’s decisions should not be subject to judicial control. The WSJ reports:
Dan Bongino, Trump’s choice to be deputy director of the FBI, has said the president “should ignore” a court decision with which he disagrees, and Vice President JD Vance wrote recently that “judges aren’t allowed to control the executive’s legitimate power.” …
“There is no hard-and-fast rule about whether, in every instance, a public official is bound by a court decision,” said Aaron Reitz, Trump’s nominee to head the Office of Legal Policy, which advises the attorney general on policy and helps select federal judicial nominees.
In his 1945 book On Power, political theorist Bertrand de Jouvenel explained how English and American liberties had long been protected by the common law or the Constitution through the courts, where judges were powerful enough to check the government and its agents. After the independence of the judges was abolished, the French Revolution rapidly turned into the worst tyranny the country had known.
The third instance I will mention also relates to the heightened threat to the rule of law. It was an incident during the campaign to deport illegal immigrants. Although it may look innocuous and merely indicative of the poor legal and historical education, or the weak spine, of many low-level praetorians, I think it is significant. According to a Reason Magazine report, an Afghan government employee who had helped the occupying American army finally succeeded in coming to America as a refugee. But last month when he went to a long-scheduled appointment with Immigration and Customs Enforcement, he was arrested and jailed, presumably to be deported. His lawyer says she asked an ICE agent why her client had been arrested and was answered (twice), “New administration”—as if a change of personnel at the top of the state changed the rule of law at the governors’ pleasure. Is this a government of laws or a government of men? Let’s hope that the lawyer did not remember the answers accurately, but they are in line with the trends we have seen recently.
On Monday, the American Bar Association issued a strongly worded statement that supports the concerns expressed in my second and third examples.
The problem is a general one: Should a state that wants to do good—or claims such intention, or lies in saying so—be constrained? Well-meaning and well-informed opponents of tyranny admit that the answer is Yes, including on the “caviar left” (la gauche caviar, as we say in French). Take Daron Acemoglu who, in The Narrow Corridor, argues that Leviathan grows non-stop but is happily shackled by the concurrent growth of “civil society.” It is the “shackled Leviathan” in the authors’ jargon or, alternatively, the “state capacity” doctrine. Illimited democracy can do no wrong. But shackles that don’t shackle are no shackles. Not far down this slope, state capacity, that is, state power, becomes the real object of attraction as we see in Acemoglu latest and rather horrible book, Power and Progress.
That’s where we are: enjoying a Leviathan who was strong enough to partly unshackle himself. It looks as if those who wanted a powerful Leviathan are getting their wish. Do they now realize that it will not bring social nirvana? Will the last shackles hold?
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The loving and beloved king with his scepter, by DALL-E as influenced by your humble blogger and perhaps by H.L. Mencken
READER COMMENTS
Pierre Simard
Mar 5 2025 at 10:22am
Tu me fais sortir mes notes. Traduit et mis en page par ChatGPT .
Trump’s Power as Seen by Mancur Olson
People often assume that the main constraints on Trump’s actions come from the American political system (such as institutional checks and balances, Congress, or the media). However, Trump’s real strength actually lies in the inability of the countries he targets to unite and act in a coordinated manner. Rather than relying solely on internal U.S. dynamics to limit his influence, these countries could play a more active role by mobilizing collectively.
The logic of collective action, theorized by Mancur Olson in The Logic of Collective Action (1965), provides a relevant analytical framework to understand why countries opposing Donald Trump struggle to come together and coordinate their actions.
The “free rider” problem. In collective action, each actor (in this case, a country) has an incentive to let others take action to reap the common benefits without bearing the costs. For example, if several countries want to oppose Trump, each might prefer that others take the risks (economic sanctions, diplomatic tensions) while still benefiting from collective resistance (weakening Trump’s influence, rebalancing international relations). This leads to under-mobilization, as each country waits for others to act.
Individual costs vs. collective benefits. The costs of opposing Trump (economic retaliation, loss of access to the U.S. market, diplomatic isolation) are often immediate and certain for a country, while the benefits of collective opposition (global power rebalancing, strengthening multilateralism) are uncertain and shared among all. According to Olson, rational actors tend to prioritize their short-term individual interests over long-term collective gains.
Lack of strong leadership or coordination mechanisms. Successful collective action often requires a leader or a strong institutional mechanism to organize and motivate participants. In the case of countries opposing Trump, there has been no clear leader (such as the European Union or a group of major powers) capable of overcoming divergent interests and coordinating a unified response. Each country has its own priorities, making coordination difficult.
Asymmetry of interests and risks. Not all countries are affected in the same way by Trump’s policies. For instance, a country heavily dependent on exports to the U.S. (such as Mexico or Canada) has more to lose by opposing Trump than a country with less economic dependence. This asymmetry in interests and risks makes it even harder to form a solid coalition.
The prisoner’s dilemma on an international scale. The situation resembles a prisoner’s dilemma: each country has an incentive not to oppose Trump (to avoid individual costs), even though collective cooperation would be beneficial for all. Without mutual trust and mechanisms to ensure that other countries will do their part, cooperation often fails.
In short, Mancur Olson’s theory explains why countries opposing Trump struggle to unite: the individual costs of opposition are high, the collective benefits are uncertain, and there is a lack of leadership or institutional mechanisms to overcome these obstacles. As a result, despite shared discontent, few countries are willing to take risks to confront Trump directly,
Pierre Lemieux
Mar 5 2025 at 10:43am
Pierre: Our friend ChatGPT seems to have done a good job translating your comment.
It’s always surprising how much mileage Olson’s theory of collective action allows us to do. I suggest, though, that there is a weakness in the analysis of cases like the one we are considering here. Each state ruler (of the “countries”) is not, and cannot be, a perfect aggregation of his subjects’ or citizens’ interests (Condorcet, Arrow, etc.). His actions are themselves a product of his subjects’ collective action problems and mainly represent his own interests and the common interests of his major supporters. (Trump attacks Zelensky instead of Putin because attacking the weakest is in his own interests.) The problem is compounded when instead of one ruler (like in banana republics), a country has a set or structure of rulers.
Craig
Mar 5 2025 at 11:34am
“But last month when he went to a long-scheduled appointment with Immigration and Customs Enforcement, he was arrested and jailed, presumably to be deported. His lawyer says she asked an ICE agent why her client had been arrested and was answered (twice), “New administration”—as if a change of personnel at the top of the state changed the rule of law at the governors’ pleasure. Is this a government of laws or a government of men?”
I’m old enough not to be dumb enough to comment about this SPECIFIC case because many cases can turn on the most innocuous of circumstances, but this is a little bit more complicated than meets the eye. One might say, “Hey, the last administration unfaithfully executed the law and simply refused to enforce it” and now they are, right? I mean what if somebody said ‘don’t bother to repay your student loans’ and the next said, ‘well you have to’
If you think Trump invented this problem, that’d be incorrect, at times the federal government just doesn’t enforce laws at all, really. Marijuana is a good example. If you ask me if marijuana should be legalized, I’d agree with you, if you asked me if marijuana should be, at minimum, a STATE issue, I’d agree with you, but as of THIS writing marijuana is still a controlled substance at the federal level and state efforts to regulate it are, at least in theory, unconstitutional Raich v Gonzales. Now, in theory to change the law a statute can be changed or some court could come around and overruled Raich’s total incidence test which has, at its root, Wickard v Filburn, the greatest abomination I have ever read in law school. But we did change he law, de facto.
We just kinda sorta ignore it.
So maybe you want to take a shot at Trump administration for deporting somebody, but maybe you should be taking a shot at the Biden administration for NOT deporting somebody……again as the case may be. Of course your individual sympathies lie with the person subject to removal and there may be other equities involved which would lean against deportation should this person be subjected to abuse/death at the hands of the Taliban, but I digress!
Todd Ramsey
Mar 6 2025 at 9:56am
Great comment.
To pile on, the ABA lament about decline of the rule of law rings hollow given its silence on, for example, the Biden administration’s disregard for immigration law.
I hate Trump, but I might hate hypocrisy more.
Jose Pablo
Mar 5 2025 at 11:57am
It is possible that too much emphasis is placed on the role of laws in restraining the Leviathan.
In reality, there is no practical reason why the executive branch must pay attention to what Congress or the judiciary says. Neither Congress nor the courts control any armed force, whereas the executive branch directly commands many: the FBI, CIA, DEA, U.S. Marshals Service, ICE, and CBP—a total of approximately 100,000 armed agents, according to ChatGPT.
One could even argue that the armed forces themselves are, to some extent, under the influence of the executive, particularly through the careful appointment of a favorable Chief of Staff of the Army.
Why, then, should a leader controlling 100,000 armed agents—and potentially the military—obey the courts?
What truly prevents the executive from exploiting the immense real power at his disposal is not the Constitution, which is merely “words on paper.” What constrains him are American customs and traditions.
But these can be successfully defied—not all at once, but gradually, one small step at a time. With the right justification, the process becomes even easier. Expect to hear repeated “exceptional circumstances,” claims of “invasions at our southern border,” or arguments about “foreign disrespect and abuse.”
The real barrier that must be torn down is not the law itself but rather customs, traditions—the ‘culture of liberty,’ if you will. Congress and the courts, including the Supreme Court, are powerless. They have no real enforcement mechanism. Their only power is cultural—soft and fragile.
I would pay close attention to cultural shifts that might normalize the open defiance of Congress and the courts. And you have mentioned many of those. Once that barrier is breached, there are no defenses left.
Roger McKinney
Mar 5 2025 at 12:16pm
Great points! I would remind readers that Andrew Jackson ignored the Court decision that said he couldn’t remove tribes from east of the Mississippi to Indian territory. He said that the Chief Justice had made his decision. Let’s see him enforce it. Then Jackson cleansed the eastern US of tribes in a deadly winter march they called the Trail of Tears.
As for Zelensky, Biden had a similar conversation with him by phone. Trump wanted to humiliate him in public and ti show the world how stubborn and irrational Zelensky is.
Roger McKinney
Mar 5 2025 at 12:23pm
Ps, at this point, the Trump Supreme Court may be our best hope for reigning in Trump and a too powerful executive branch. Several law suits are coming their way that challenge the power Congress gave presidents over tariffs. Trump’s Court has so far been good about enforcing the separation of powers and resurrecting the Constitution. It would be wonderful irony if the Court he created thwarted his ambition.
Craig
Mar 5 2025 at 12:37pm
Just as an aside the Worcester case and Jackson’s famous response to it was with respect to whether a GA state statute was constitutional vz Native Americans. It was not something JACKSON himself had done. The context is Marshall made his ruling, he’ll need me to enforce it and Jackson wasn’t going to, let Marshall do it and of course he didn’t possess the agency to actually do that.
Jon Murphy
Mar 5 2025 at 12:31pm
L’État, c’est moi. There really isn’t much difference among authoritarians. Sure, their ideologies may differ, but that’s a distinction without a difference.
Jose Pablo
Mar 5 2025 at 3:09pm
L’État, c’est moi
In reality, it is closer to “I am the people” (since it was the United States, after all, that was the object of this disrespect).
Also, the fact that the truth—that Russia cannot be trusted to honor a peace treaty, as proven by its repeated violations in the past—can be considered disrespectful seems to point to the belief that “I am the truth.”
What could possibly go wrong?
Monte
Mar 5 2025 at 1:02pm
Concerns about the potential disaster of Trump 2.0 have thus far been greatly exaggerated and rank right up there with Y2K, Murder Hornets, and California sinking into the Pacific. The most authoritarian president, to date, was FDR, but democracy survived. A lot of what emanates from Trump and his entourage is hot air (some of it actually refreshing against the cold, harsh realities of DEI, gender-affirming care, and illegal immigration). I’m confident that our constitutional restraints will continue to hold firm against any attempts by Leviathan to break free.
Why are you fearful, O ye of little faith?
steve
Mar 5 2025 at 1:45pm
I am concerned because the Constitution in fact places little restraint upon the power of the executive. In theory Congress was to have the power of the purse and to be jealous of its own powers. In fact, as Washington warned, political parties now are dominant so Congress has become supine to the executive and the purse power has now been suborned. That leaves SCOTUS and the current group has been strongly supportive of the idea of the strong executive branch. The recent decision that POTUS cannot do anything illegal if he talks with the DOJ was quite damning.
So the only real power Congress has left is impeachment and there is no way Congress impeaches one of its own, no matter what they do. SCOTUS, based upon past decisions, appears to support a strong executive and on top of that we dont know if Trump will actually carry out the decisions of the courts. The courts can put out all the rulings they want but the executive branch can drag their feet for years. Who will punish their inaction? Its an inherent fault in our system, one that was not really foreseen as it was assumed whoever held the Presidency would act within conventional norms.
Steve
Jose Pablo
Mar 5 2025 at 3:17pm
I don’t know, Monte. It’s the attitude that speaks volumes.
We can only wonder what would have happened if JD Vance, rather than Pence, had been in charge of the joint session of Congress on January 2021.
But …
Monte
Mar 5 2025 at 6:31pm
Both you and Steve raise some very real concerns, but the most resilient mechanism of American democracy is the vote. The president could, with the help of Congress, choose to circumvent the constitution and ignore the SCOTUS, but he cannot set aside a free and fair election and remain in power if voted out of office, which, I believe, is exactly what the American people would do if these events were to transpire. The electoral process serves as a fundamental safeguard against any potential breach of executive authority, no matter how powerful that authority may be. But shouldn’t we wait to render judgement after the fact and not before?
Jose Pablo
Mar 5 2025 at 10:52pm
he cannot set aside a free and fair election and remain in power if voted out of office
Can’t he? He’s already tried once. And one could argue that back then, he was relatively self-restrained compared to now.
Monte
Mar 5 2025 at 11:39pm
If he tried, I think most Americans would rebel and every branch of government and would coalesce against him. But I’m willing to take any wagers against that happening.
David Henderson
Mar 5 2025 at 2:06pm
Good post, although I look at last Friday’s meeting differently. I had the same view as you when I watched the 3-minute segment, but a pretty different view when I watched the previous 45 or so minutes. I thought Marco Rubio laid it out nicely on CNN, and I never thought I would say something positive about Rubio as Secretary of State.
Mactoul
Mar 5 2025 at 10:50pm
Thomas Friedman in Yew York Times today:
All efforts to separate yourselves from Trump, Musk et al are futile. Liberals don’t distinguish between authoritarian and genteel efforts to downsize the government.
Jose Pablo
Mar 6 2025 at 11:01am
efforts to downsize the government.
There is no real effort to downsize the government currently underway—quite the opposite.
The true measure of a government reduction is not how many bureaucrats are fired, but rather the extent to which individual constraints to pursue happiness are lifted.
These constraints grow far more due to tariffs and deportations than they are reduced by eliminating a few government workers measuring wind speeds or promoting LGBTQ+ rights in Lesotho.
When the thugs and robbers of the government came to my house on April 18th to seize tens of thousands of dollars by force, all the presidential decrees so far will make no difference.
If this administration were truly committed to downsizing the government, it would be:
Promoting a constitutional amendment requiring divided government—no party should control both the presidency and Congress at the same time.
Mandating bipartisan appointments—half of key executive positions should go to each party, in particular, the Attorney General and President should never belong to the same party.
And much more along these lines.
That is what downsizing government looks like. Firing the people who maintain government websites? That’s just a (bad) joke.
Pierre Lemieux
Mar 6 2025 at 8:21pm
Mactoul: I suspect you want to prove what I said in a recent post:
Mactoul
Mar 5 2025 at 11:07pm
Today’s judiciary is nothing like its Common Law predecessors but is more of a part of the administrative state and its chief enabler. Read Mark Steyn (he of a free speech case) and Conrad Black about evils of American judiciary. Conviction rate is 97% and 90% of cases decided on plea bargaining?
There is no doubt that judiciary needs to be tamed if the government is to be downsized and economy deregulated.
Pierre Lemieux
Mar 6 2025 at 2:54pm
Mactoul: Have a look at 1789 and the Terror that followed.