Legal Scholar Warns Government Shutdown Could Lead to Authoritarian Takeover

• “This shutdown feels different because it is coming amid an authoritarian takeover of the federal government. Shutting down the government does nothing to arrest that takeover and there is a real risk it will accelerate it.” – Austin Sarat

A leading legal scholar is warning that the looming government shutdown could give President Donald Trump sweeping opportunities to consolidate power and push forward what he describes as an authoritarian takeover of the federal government.

Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, said shutdowns have historically been disruptive but temporary. This time, he argued, the stakes are far higher.

“This shutdown feels different because it is coming amid an authoritarian takeover of the federal government. Shutting down the government does nothing to arrest that takeover and there is a real risk it will accelerate it,” he said.

Sarat pointed to the historical record of government shutdowns in the United States. Since 1980, there have been 14 shutdowns, most of them brief. The longest came at the end of 2018 and stretched into 2019, lasting 35 days.

According to the Pew Research Center, as many as three-quarters of Americans in past shutdowns called the disruption “a bad thing,” and more than a third described it as a “crisis.”

While short shutdowns may not inflict major economic damage, experts estimate that every week a shutdown continues reduces gross domestic product growth by about 0.2 percentage points.

But Sarat emphasized that the real danger this time lies not in the economics but in the political environment.

He cited MSNBC columnist Michael Cohen, who warned in September that “a government shutdown might represent a symbolic roadblock for Trump’s increasingly authoritarian agenda, it won’t stop him.” Cohen further wrote that “a shutdown intended to stop Trump could actually give him and the GOP more power to wreak havoc with the federal government.”

Commentators across the political spectrum have voiced concern that Trump would use a shutdown to reshape government operations. 

The Atlantic has suggested that a shutdown “could lead to the dramatic winnowing of its size that conservatives have sought for decades,” while PBS reported that Trump would have “enormous latitude to determine which services, programs and employees can be sidelined, decisions that could go far beyond what has occurred during past shutdowns.”

Evidence suggests the administration is already planning for such an opportunity. 

The White House Office of Management and Budget has directed federal agencies to prepare “reduction-in-force plans for mass firings during a possible government shutdown, specifically targeting employees who work for programs that are not legally required to continue.” Sarat explained that such authority would enable the president to decide, unilaterally, which operations to keep open and which to halt. “He can halt government services in blue states but not in red ones in order to exact retribution from people he thinks did not, and do not, support him,” he said.

Beyond personnel decisions, Sarat warned that Trump could use the shutdown as cover to expand his reliance on emergency powers. 

“Even when Trump doesn’t declare a legal emergency, he describes crises that justify dramatic action,” The New York Times reported. The paper noted that Trump invoked emergency powers more often in his first 100 days than any other modern president in the same period.

Sarat pointed to scholarship by Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, who explained that “unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a ‘national emergency’ — a decision that is entirely within his discretion — more than 100 special provisions become available to him.”

According to Sarat, these powers could be applied in sweeping ways during a shutdown. Trump could suspend statutory wage-rate requirements for public contracts, override labor-management protections, or call upon the military to perform work typically carried out by civilian agencies. “A shutdown will feed that particular beast,” Sarat said.

The professor also highlighted the political irony that Senate Minority Leader Chuck Schumer once voiced similar concerns. 

Last March, Schumer voted with Republicans to prevent a shutdown, warning at the time that “a shutdown would give Mr. Trump… permission to destroy vital government services at a significantly faster rate than they can right now.” 

Schumer also acknowledged that, under a shutdown, “the Trump administration would have wide-ranging authority to deem whole agencies, programs, and personnel nonessential, furloughing staff members with no promise they would ever be rehired.”

Schumer noted that such decisions would effectively be left to the executive branch, with little oversight, since “the decisions about what is essential would, in practice, be largely up to the executive branch, with few left at agencies to check it.” 

He added that a shutdown would be “the best distraction Donald Trump could ask for from his awful agenda. Right now, Mr. Trump owns the chaos in the government…. In a shutdown, we would be busy fighting with Republicans over which agencies to reopen and which to keep closed instead of debating the damage Mr. Trump’s agenda is causing.”

Sarat lamented that Schumer has since shifted course. 

“It is too bad, in the present moment, that Schumer didn’t heed his own counsel. Little has changed since March — except that Schumer now knows that if he repeats his March performance, the political blowback would be enormous,” Sarat said.

He concluded by stressing that the fragility of American democracy makes it all the more vital to avoid the shutdown. 

“Since the spring, American democracy has grown more fragile. That’s why all of our energies need to be focused on rallying to its defense,” Sarat argued. “In the end, Schumer should have supported passage of the legislation that would have kept the government open and not picked a fight that, at other times, would have been well worth fighting.”

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