Sarah Grace Kubasek
As Donald Trump embarks on his second term, the American democratic system faces
a critical test. With mounting concerns over executive overreach, election integrity, and
immigration policy, legal scholars and public interest advocates warn that the nation’s
institutions must hold firm against unprecedented challenges.
“The Constitution was designed to restrain executive power, but it relies on institutional
actors and the public to enforce those limits,” says Richard Hasen, director of the
Safeguarding Democracy Project at UCLA. “The normalization of election denialism and
the erosion of public trust in democratic processes make it more difficult to uphold those
safeguards.”
The scars of Trump’s first term run deep. His refusal to accept the results of the 2020
election and his ongoing attacks on electoral legitimacy have left millions of Americans
doubting the foundation of democracy itself. “When a significant portion of the electorate
believes that elections are rigged, it opens the door for justifications of anti-democratic
actions, including political violence and efforts to manipulate election administration,”
Hasen says.
Yale historian Timothy Snyder echoes this warning in his three books On Tyranny, On
Freedom, and The Road to Unfreedom, emphasizing that “institutions don’t protect
themselves; they fall one after the other unless each is defended from the beginning.”
He describes how democratic backsliding often happens, not through abrupt collapse
but through “anticipatory obedience,” where institutions and individuals conform to
authoritarian tendencies even before being explicitly forced to do so.
Snyder draws on examples from the fall of the Weimar Republic, where a series of legal
and political maneuvers allowed Hitler to dismantle democracy, and Hungary’s ongoing
erosion of democracy under Viktor Orbán, where illiberal forces have used nationalism
and disinformation to solidify their control. In The Road to Unfreedom Snyder warns that
disinformation is one of the most powerful tools in an authoritarian’s arsenal, as it
undermines trust in institutions and creates a society where facts are relative. “Post-
truth is pre-fascism,” he asserts, emphasizing that when leaders manipulate the truth,
they make it possible for anti-democratic actions to take root.
Like Germany in the 1930s and Hungary in the 21st century, the U.S. now faces the
convergence of political division, economic instability, and targeted attacks on its
institutions, threatening its democratic foundation.
Another pressing concern is Trump’s use of executive power, particularly in shaping
immigration policy. Kevin Johnson, a former dean and law professor at UC Davis
School of Law specializing in immigration and public interest law, emphasizes that
immigration has long been a test case for executive authority. “Immigrants and
noncitizens cannot vote, yet their lives are dictated by the political decisions of the
majority,” he says. “Harsh immigration policies tend to be popular with voters, and courts
often defer to the executive branch on these matters, making it difficult to challenge
sweeping restrictions.”
A stark example of executive overreach is seen in Donald Trump’s Executive Order
14159, which significantly hinders access to legal counsel for immigrants in detention.
“When detained immigrants can’t access lawyers, it undermines due process and strips
them of a critical line of defense,” Johnson says. This policy not only jeopardizes the
rights of noncitizens but also deepens their sense of vulnerability in an already hostile
environment.
Just like many of Trump’s executive orders, Executive Order 14159 has triggered
several lawsuits challenging its constitutionality, as tracked by resources like Just
Security’s Litigation Tracker. These lawsuits, such as Amica Center for Immigrant Rights
et al. v. U.S. Department of Justice (D.D.C.) are serving as critical checks on this
overreach. These legal battles are not just about restoring access to legal counsel but
also about reinforcing the broader principle of due process—a cornerstone of
democracy. If the courts fail to check executive overreach, it sets a dangerous
precedent.
Johnson also highlights the role of state governments in countering federal immigration
policies, pointing to California’s sanctuary laws and social services for undocumented
immigrants as key examples. “This is an instance of federalism in action,” he says.
“States can influence policy within their jurisdictions, but the extent of their autonomy
remains uncertain when confronted with an aggressive federal agenda.”
Adding to the debate over executive power, Rep. Andy Ogles (R-Tenn) has proposed
amending the 22nd Amendment, potentially allowing Trump to seek a third term. While
constitutional scholars overwhelmingly agree that such an amendment would be nearly
impossible to pass, Hasen finds the mere discussion deeply troubling. “The fact that we
are even debating the possibility of overturning term limits for one individual highlights
the erosion of our democratic norms,” he warns. “This is not just about Trump seeking a
third term—it reflects the extent to which the public is willing to tolerate democratic
backsliding.”
Despite these challenges, Hasen and Johnson emphasize that the future of American
democracy is still within the public’s control. “The solution lies in strong political
institutions,” Johnson says. “Congress must act decisively on immigration reform, and
courts must uphold constitutional constraints on executive power. But, ultimately, the
responsibility falls on the American people to demand accountability.”
Snyder agrees, arguing that democracy is not a static condition but an ongoing effort.
“The mistake is believing that someone else will take care of it,” he says. “Democracy is
not something you have, but something you do.”
Snyder urges Americans to take an active role in defending democracy, emphasizing
that small, everyday actions—supporting a free press, participating in elections, and
holding leaders accountable—can help prevent democratic decline. “The mistake is
believing that someone else will take care of it,” he warns. “Democracy is not something
you have, but something you do.”
As the nation navigates another Trump presidency, the resilience of American
democracy will face its greatest challenge yet. The key question remains: are the
institutional guardrails strong enough to withstand the test?
