On December 3, 2024, South Korean President Yoon Suk-yeol attempted to seize control of the country by abruptly declaring martial law. What happened next reveals how democracies can unleash antibodies to resist dangerous threats to the body politic and defend their system of government. Although Yoon had sent military forces to surround the National Assembly and block legislators from taking an emergency vote rescinding his order, legislators rushed to the building and were able to enter. Meanwhile, the military officials and intelligence agencies that the president sought to enlist refused to cooperate, the courts refused to stand aside, and the media reported developments accurately. In the end, backed by overwhelming public support, the National Assembly voted unanimously to rescind the order, putting a stop to the president’s gambit.
Yet even though the South Korean episode ended successfully, it raises an unsettling question about the future of another democracy, which happens to be the world’s most powerful country: the United States. What if Yoon had begun his attempted takeover just a touch more gradually—say, by purging the leadership and midlevel staff at security agencies and replacing them with his own loyalists; normalizing the forced removal of individuals from South Korea and defying court decisions over time even when the courts’ orders were clear; cracking down on law firms, former officials, and even members of his own party who challenged him or defied his wishes in order to uphold the law; and, aided by pliant legislators from his own party, progressively wresting control of government spending—including even money already allocated—from the legislature? As Donald Trump’s second administration vows to deny federal funds to states to bring their actions in line with the his views, pressures the country’s leading law firms into providing hundreds of millions of dollars of pro bono services for causes approved by the president, threatens to end the independence of agencies such as the Federal Reserve, and moves ever closer to open defiance of court decisions, the problem of how to strengthen and even preserve law-bound democracy in the United States is drawing new attention.
To approach this challenge coherently, it is essential to understand how the constraints on executive overreach that are built into the American system operate in practice and which ones matter most. These constraints depend on more than just the courts. When judges rule on cases about the limits of presidential power or the rights enshrined in the First Amendment, they are operating in a larger democratic context. The contours and impact of their decisions are affected by multiple factors, including the attitudes and norms of the larger public as well as elites, the rules governing the behavior of states and institutions such as Congress, and the way the media covers the decisions themselves. In contrast to countries that rely on dedicated career tracks to staff their judiciary, judges in the United States tend to come to the bench with broader professional acumen. And their decisions can galvanize public attention and elite concern, including among the leaders of the state and local governments—the authorities that most directly affect the day-to-day life of American communities.
Alongside the courts, then, it is possible to discern two other elements of American democracy that are crucial in constraining the president: an information space that covers the facts of cases before the courts and the substance of judges’ decisions and a federal system in which states are constituted as independent sovereigns, with wide powers of their own to govern, conduct and oversee elections, and frustrate federal plans. Although the courts, the media, and the federal-state balance all buttress American democracy, they may also serve as potentially inviting targets for a power-hungry executive. In this regard, it is crucial to distinguish administration policies that are merely controversial from those that seek to undermine the courts, weaken the independence of state and local officials, or unlawfully target the media and the civil-society sector.
In its first few months in office, the Trump administration has undertaken a number dramatic but still constitutionally permissible policy changes such as reassessing the U.S. relationship with Ukraine and Russia, withdrawing from the World Health Organization, and halting U.S. participation in international efforts to address the stark threat of climate change. But these steps coexist with other rhetoric and actions that have begun to target the key pillars of American democracy, as when the administration refuses to comply with a federal judge’s order or threatens to use the federal bureaucracy to target states, private institutions, and individuals who oppose the president or fail to accede to the president’s demands.
Herein lies the central test facing the United States. Like its predecessors, the Trump administration has a legitimate prerogative to make major policy changes, even ones that many Americans may consider ill advised. But it cannot legitimately assume arbitrary powers in violation of basic constitutional principles. The country’s democratic guardrails create space for people to speak, deliberate, organize, and litigate in response to questionable actions from the federal executive, allowing courts, states, and the media to enable civic action to further the country’s common interest in law-bound democracy. Even if the country’s democratic guardrails remain relatively strong at the moment, business and the public must recognize the growing danger the administration’s actions may pose to the country’s democratic foundations and why defending these guardrails is a mission worthy of thoughtful Americans from any party or political persuasion. That defense would still leave the administration plenty of room for major policy changes—but within a framework protected by three of the guardrails that matter most.
THIS TIME IS HARDER
Democratic states are built on different histories and sometimes embrace different rules, but the experience of the United States broadly matches that of other law-bound democracies, such as Brazil, Costa Rica, and Poland: in each case, the ultimate constraints on executive power depend as much on practice as on moral principle. What usually matters most, in other words, is whether political representatives, key business leaders, career government officials, civil society, and the general public are prepared to act before an executive power grab saps them of influence.
For a variety of reasons, however, many of these traditional sources of constraint are unlikely to play a particularly important role in limiting the Trump administration. No meaningful challenge should be expected, for example, from the narrowly Republican-led Congress, given that members of the majority party can be disciplined through primary challenges supported by the president. By stocking federal law enforcement agencies with loyalists and taking tight control of federal personnel policy to ensure loyalty, the administration has increasingly preempted possible constraints to its power from within the federal bureaucracy. Similarly, much of the military is led by presidential appointees and is under the command of the president, who has broadly worded statutory authority to deploy the military in a range of domestic situations.
Of course, the general public, along with business leaders and major investors, has the potential to exert powerful and perhaps prohibitive costs on any effort by the leader of a democratic country to undertake a massive expansion of executive power. In Israel in 2023, for instance, months of large-scale public protests, and pressure from trade unions, business leaders and prominent economists, former officials, and even military reservists, induced the Israeli government to back away from much of a sweeping package of changes aimed at curbing the judiciary’s independence. In a market economy, major investors can also constrain executive power. In the United Kingdom in 2022, Prime Minister Liz Truss’s effort to push through fiscally risky reforms created an overwhelming backlash from the business sector, augmenting popular opposition and helping make her the shortest-serving prime minister in British history.
Yet even setting aside the extraordinary polarization of the U.S. electorate, which makes building broad coalitions more difficult, major investors and the general public tend to diverge on which executive actions constitute a serious enough threat to democracy and the rule of law to galvanize a strong response. Certain members of the public, for example, may be more concerned about arbitrary detention or denial of funds for the public education system than executive orders that target law firms or the president’s assertions of emergency tariff powers, moves that may be worrisome to business because they upend economic stability. Although Americans may broadly agree that the president shouldn’t usurp Congress’s powers over federal spending, it may be difficult for the public to know—at least without a clear court judgment—when the administration has gone too far. And over time, an administration that is determined to squelch all opposition can leverage fear of government scrutiny, denial of funds, or adverse policy changes to silence business and civic leaders—even those who are ordinarily plucky—and dissuade not-for-profit groups, universities, and firms from challenging its authority and having their day in court.
Here is where the three key pillars of U.S. democracy can buttress the system. First, by issuing reasoned, carefully argued decisions that hold the executive to account for flouting legal norms, courts can help buy time for the public and the private sector and inform them how to confront a changing presidency. Yet the two other elements complementing the courts—the federal-state balance and the independent information sector—are equally important. Unlike South Korea, for example, the United States is designed as a union of federated states in which state and local officials control most of the country’s capacity to govern and use force in civilian settings. And an independent media, together with a vast ecosystem of nonprofit research institutions, think tanks, and scientific organizations, can generate ideas and analysis that challenge official administration narratives. By shining a light on government actions that ignore duly enacted laws or violate due process or the separation of powers, and by interpreting court decisions holding the administration to account, they can help guide an effective response.
SOURCES OF STRENGTH
The guardrails of the U.S. system are not all powerful. When Alexander Hamilton predicted in The Federalist Papers that federal courts would be the “least dangerous branch” because they lacked “sword” and “purse” to enforce their decisions, he was underscoring certain genuine limits to the extent of the judiciary’s power. Although their decisions can deny government or other parties the benefit of court enforcement and alert elites and the public about executive actions that trample basic rights or break core rules of U.S. democracy, judges lack dedicated armies and the power to directly levy taxes. Exacerbating these limitations is the tendency of some courts to occasionally disregard precedent or to avoid decisions that would bring them into outright conflict with the administration out of concern that their rulings might not be followed.
State and local officials and the independent media face their own limits to their ability to push back. Governors and mayors depend on federal dollars for their budgets and sometimes lead heavily divided jurisdictions. In turn, the traditional media lack the influence they once had. In the 1960s, televised images of police using water cannons and truncheons to beat civil rights protesters spurred Congress and the American president to enact civil rights laws; in the following decade, newspapers and the major television networks did much to shape public understanding of wrongdoing by the Nixon administration during Watergate. Today, by contrast, independent newspapers and television networks have been increasingly displaced by partisan podcasts and social media, some of which loudly reinforce presidential assertions of power and amplify attacks on judges who rule against the administration.
But each of these three pillars also benefits from powerful advantages. Consider the judiciary: its strength reflects the long American tradition of employing judges who have a measure of professional accomplishment before they join the bench and of maintaining the rigorous independence on which businesses and civil society depend. Courts have the unambiguous power to block arbitrary criminal convictions, and in the unlikely event that a Congress sympathetic to the president cuts funding for federal courts or restricts their jurisdiction, state courts, which are quite autonomous from their federal counterparts, can independently enforce the federal Constitution.
It is one thing for Vice President J.D. Vance to publicly warn that “judges aren’t allowed to control the executive’s legitimate power” but quite another for the president to ignore an explicit, unambiguous decision from a court to avoid disclosure of the identities of FBI agents (the administration complied with a court order to that effect in a lawsuit in D.C. district court), preserve records of government communications (another example of compliance with the same court), or to cease cutting off benefits for millions of Americans (defiance of which would likely incur overwhelming pushback from the public and from members of both parties in Congress whose constituents would be directly affected).
The ability of state and local officials to stand up to the federal executive is buttressed by both the mechanics of the federal system and long-established doctrine. Successive conservative U.S. Supreme Court majorities have issued rulings protecting states from being commandeered by the federal government or coerced into action by the withholding of federal funds. Courts have also limited the federal government’s power to regulate local activities. The sheer scale of the country and the existing distribution of governing power make it virtually impossible for any federal scheme to impose full control over the continent-sized American federation: in practical terms, most daily functions of government take place in statehouses and municipalities, not Washington.
Consider public employees. State and local governments employ 19.6 million workers, accounting for 87 percent of all public civilian employees, dwarfing the federal government’s 2.9 million civilian employees; this ratio will skew even more to state and local governments in the wake of the administration’s massive cuts to the federal workforce. In law enforcement, the situation is even more lopsided, with 91 percent of the country’s officers serving local and state administrations rather than the federal government. Federal investigations can obviously have an enormous impact on individuals and organizations, but the bulk of the country’s policing capacity remains a state and local affair—staffed by officers whose departmental priorities may not align with those of federal immigration agents and, particularly in urban regions, and who may be skeptical of cooperating with federal authorities.
For its part, the media and the ideas sector benefit from First Amendment protections and the bedrock tradition of press freedom. Even in a world in which Elon Musk has 210 million followers and CNN has fewer than 600,000 viewers in prime time, the business community, along with farmers, workers, and the general public, demand accurate reporting of facts and the effects of decisions by courts and legal challenges to the federal government in order to make informed decisions. Widely available fact-based news and analysis can help enough of the public and the business community build a shared reality about what’s happening in courtrooms, cities, and states around the country, and Washington.
In the 2010s, for example, when the water supply of Flint, Michigan, became contaminated following the city’s switch to a cheaper water source, investigative journalism galvanized national public attention on the crisis and helped drive policy changes. During the first Trump administration, widespread news coverage of travel restrictions targeting all travelers from seven Muslim majority countries led to nationwide protests, and along with legal action, seemed to force the administration to scale back its order.
These three fundamental features of American democracy can also reinforce one another: media coverage of court decisions, for instance, can explain in detail why a presidential move to fire independent commissioners from the National Labor Relations Board or the Federal Election Commission bodes ill for the Federal Reserve’s independence. Objective analyses from news sources or nonprofits can help states decide how to respond to unlawful federal encroachment on state prerogatives or attacks on civil society. And efforts by the president and close allies in Congress to limit the powers of federal courts—for example, by enacting limits on nationwide injunctions or imposing jurisdictional limits on where lawsuits can be filed—could provoke mass resistence by civil society as in Israel. Moreover, such limitations on the courts would be unable to stop state judges from fulfilling their oaths to protect federal constitutional rights, as they routinely do in criminal cases or disputes involving private property.
SLOWLY, THEN ALL AT ONCE
Although it is a primary source of democratic resilience, the nuanced interplay between the courts and other elements of the U.S. system also illuminates an important vulnerability. Whereas a dramatic confrontation between the president and another branch of government might rally immediate public opposition to executive overreach, more subtle efforts by the administration to erode institutional checks and balances pose greater challenges.
Consider a scenario in which the administration sets out to consolidate power more incrementally. It might begin by using legal channels to gradually neutralize constraints on executive power, building on, say, its use of the 1798 Alien Enemies Act to deport Venezuelan migrants to El Salvador. It could advance expansive interpretations of executive privilege or national security authority through actions that initially involve unpopular targets such as immigrants from countries considered dangerous or allegedly affiliated with violent gangs. Over time, the precedent of the swift removal of people—with limited if any judicial intervention—can be deployed more broadly to target immigrants, even lawful ones, espousing views disfavored by the administration. Delays, obfuscation, and bouts of merely technical compliance can hem in the courts’ influence.
Leveraging its discretion over regulatory and criminal investigations, the administration could also accelerate its efforts to target political opponents by using the legitimate powers of federal agencies in ways that create asymmetric burdens on critics and adversaries. While maintaining plausible deniability, the administration could continue to encourage both online and physical harassment of critics—from journalists to judges to state officials—through a combination of inflammatory rhetoric and selective inaction against supporters who engage in such harassment on its behalf. Each of these steps in itself might not trigger significant resistance, but taken together, they could achieve many of the same ends of unfettered executive power. And they could do so while avoiding, say, a direct confrontation with the Supreme Court—and the intense public backlash it might unleash—that the administration currently seems to fear.
The effectiveness of this kind of stepwise autocratization has been shown in countries such as Turkey, where President Recep Tayyip Erdogan has used seemingly technical regulatory powers to progressively erode press freedom, for example, by pressuring news outlets into self-censorship or to undertake ownership changes. Over time, such tactics could conceivably alter the landscape of institutional constraints on executive power without ever forcing a full-blown constitutional crisis. Although this approach is not certain to succeed in the United States, the distinctive risks it poses arise from the special role played by the courts, the states, and the media in the U.S. system.
Democratic institutions and the courts operate on a complex chessboard of moves and counter moves. Whatever their partisan background, some actors in this system are motivated by principled commitments to democratic norms, while others pursue narrower partisan or personal agendas. This dynamic creates both costs and opportunities for presidential action, as different strategies may elicit varying levels of institutional and public response. Since democracies also depend on extraconstitutional norms that are now eroding, such as the assumption that key actors in the political system will avoid maximal use of existing powers, judicial decisions that police the hard constitutional limits on presidential prerogatives have become more important.
The efficacy of courts when they confront efforts by the president to fire civil servants, impound budgets, coerce the media, or commandeer state officials depends in large measure on their willingness to live up to the country’s doctrinal commitments. These call for enforcing ample limits on presidential power while leaving plenty of room for principled executive action, whether concerning good-faith stewardship of statutory requirements or the handling of foreign affairs. As already reflected in several important rulings against the administration, U.S. judges are structurally empowered not to be chilled by external threats and know all too well why their decisions cannot be dictated by executive branch fulminations about refusing to comply with court rulings.
Yet such court-imposed constraints are not themselves sufficient to check an emboldened Trump administration. Never in history has the country faced such a massive, “flood the zone” strategy from a president who muses openly about a third term, implies that he can choose to impound funds previously appropriated by Congress, and does not appear to care about the Constitution as it has been established by court doctrine and understood by generations of legal scholars. Given the volume of legally dubious activity, some of the administration’s unlawful actions will inevitably advance before litigation can stop them. Judges can issue emergency injunctions and take other measures to halt egregious behavior by the executive, but adjudicating major cases to completion will take time and may be subject to uncertainty arising from procedural missteps or lack of plaintiff standing (as when Trump administration officials tried to execute a mass buyout plan for federal workers). Defenders of American democracy will need to constrain these actions through other mechanisms.
In this regard, the independent media and state and local officials are an essential complement to the courts: in a world in which some court cases aren’t being pursued, others are tied up in knots, and still others are being defied, independent reporting about the resulting mess is hugely important. But so is the practical constraint of actually governing a country in which most governing power lives at the state and local levels—through police, firefighters, emergency responders, teachers, operators of electric grids, land use personnel, and others. Barring a radical expansion in the power of the federal government, if the president seeks to deploy federal law enforcement investigations against his enemies or particular groups such as certain categories of immigrants, for example, he can do only so much without the help of state and local law enforcement. Thus, if the administration decides to ignore court decisions ordering noninterference with the states or threatens to coerce state authority to do its bidding, state governments can respond in kind by ignoring lawless federal edicts and refusing to cooperate with federal enforcement efforts.
Indeed, even if the U.S. Supreme Court decides to fall in line behind the Trump administration’s power grabs, its project could well be frustrated by the many dozens of separate sovereigns who, in addition to filing countless lawsuits, have wide powers over actual daily governance and in many cases are supported by strong constituencies clamoring for them not to kowtow to the White House. When people are aggrieved by, for example, state-level officials working with the federal government, they can get their day in court before state judges who have taken an oath to defend the federal Constitution as well as their state constitutions. And Congress and the president have no legal power to stop state judges from enforcing the constitutional rights of ordinary Americans if they are subject to harassment from particular local police units working with federal law enforcement.
UNLAWFUL, NOT UNPOPULAR
If the courts, state governments, the media, and ultimately the business community and general public are to provide an effective bulwark against executive overreach, they will need to keep their eyes on the ball. It is essential to distinguish between permissible policy changes, however disruptive, unpopular, or potentially harmful, from actual democratic backsliding. Ending U.S. support for Ukraine in its defense against Russia’s invasion may be troubling to many Americans, but the president is granted particular leeway in foreign affairs, and Trump made clear in his campaign that he intended to make stark changes in the Kyiv-Washington relationship.
Moreover, not all transgressions of democratic norms carry equal weight. Plenty of legitimate arguments can be made about how Trump has upended long-standing practices in his selection of military leaders, his appointment of loyalists to head or remake major government institutions, or his micromanagement of overhead costs for scientific grants. But unless such actions clearly violate the law, they should not be confused with efforts to dismantle core democratic guardrails. Only by focusing in a disciplined way on the latter will it be possible for Americans to build a strong and effective response to unlawful power grabs by the administration. Transgressions of norms may be relevant to judging the administration’s merits and intentions, but the effective defense of democracy—by both making use of and protecting the guardrails that matter most—depends on this distinction.
What the public needs to be concerned about are those presidential actions that materially undermine democratic institutions. Left unimpeded and ratcheted up over time, such actions risk dangerously weakening the critical feedback loop that links policy changes to widely debated consequences, adjudication of the law, and meaningful elections at the core of the American system. The integrity of federalism is at stake, for example, in the U.S. Justice Department’s move to suspend charges against New York City Mayor Eric Adams as a way to induce his cooperation with administration efforts to crack down on migrants—a move that prompted multiple resignations by career government lawyers. The same is true for the president’s threats to withhold duly appropriated federal monies to state and local governments that refuse to accept administration demands on matters such as college athletics or the administration’s selectively imposed restrictions on federal emergency response funds to states. Equally concerning are the president’s efforts to undermine major law firms that took cases against him or represented clients whom he regards as enemies.
On the question of the administration’s removal of people who are lawfully in the country—holders of immigrant green card visas, for example—the courts will need to balance the need to uphold constitutional rights with the president’s broad leeway to conduct foreign affairs. As lawyers and stakeholders have forcefully argued, by invoking the Alien Enemies Act to defend its actions—an act that has previously been used only in three wartime situations, in each of which Congress had declared war—the administration has cast aside precedent. Indeed, the administration’s legal positions risk implying that it can remove anyone to another country before or in spite of court review, even if that country will hold the person indefinitely with no criminal charges.
If the Trump administration moves from aggressive but symbolic criticisms of judges to openly flouting court rulings, judges, civic leaders, and the general public will have several tools with which to respond. For one thing, the more the administration plays games with the courts, the more it will spend down the scarce reservoirs of credibility it needs to prevail even on the cases that are within the zone of law and that it could conceivably win. “The executive will lose much from a public perception of its lawlessness,” wrote Circuit Judge Harvie Wilkinson in his April decision opinion concerning Kilmar Abrego Garcia, the Maryland resident whom the administration has wrongly deported to a Salvadoran prison. In many cases, parties challenging executive action will argue that the administration’s pattern of noncompliance should be taken into account, and trial courts will consider their full range of options. Courts can impose injunctions and special monitors or initiate contempt proceedings that can culminate in criminal or civil contempt (the latter of which remains beyond the reach of the presidential pardon power): Judge Boasberg has already done this in a case involving removal under the Alien Enemies Act.
Alongside action by the courts, high-profile former public officials and judges from across the spectrum could form panels organized by nonpartisan civil society groups to monitor administration compliance with court decisions in key cases. And the governors, mayors, and state attorneys general who constitute the heart of the federal system will determine their own responses to executive overreach against the backdrop of court judgments and media reports about actions that are contrary to law. Whatever the difficulty, steady and clear critiques of efforts to undo the guardrails of American democracy—guardrails that have been powerfully constructed over the years by conservative jurists and voices from civil society—are at least a necessary, if not sufficient, condition to give American citizens, investors, and businesses leaders the capacity to respond.
HOLDING THE LINE
In the first three months of his second term in office, Trump’s executive actions have gone well beyond the policy changes one might rightly expect in a rule-bound democracy. Yet Americans are not now living under an authoritarian regime. Although there has been plenty of troubling behavior from the administration, the three critical guardrails of the U.S. system remain in place and can continue to provide essential constraints on a lawless executive: courts are ruling, states are going about their functions, and the media and ideas sector are relentlessly explaining to a divided American public what the administration is doing and why it matters.
Together, these guardrails can create enough space for business and the public to better judge the implications of what is actually happening, decide on suitable action, and participate in meaningful elections. They convey that the commitment to a rule-of-law-based democracy that has long defined the United States is not just a set of values; it is built into the underlying structure of American society in a way that allows the country to continually improve and avoid its worst impulses. Prematurely assuming that the foundations of U.S. democracy are crumbling and that the edifice will collapse can make people run for cover at precisely the moment when they should instead be reinforcing them.
Courts, federalism, and the independent media will not alone protect the country in every circumstance. But they can enable crucial action to respond to a relentlessly power-hungry administration. And they provide a toolbox to contain a presidential project that seeks to amass the kind of power that would have come in handy to Yoon in South Korea when he tried to declare martial law in December. The extent to which these guardrails can hold the line and ensure that American pluralist politics remain resilient will be an important factor in determining whether the United States finds one day that the rule of law has been replaced by a system of personalized, arbitrary power.
That the United States is a democracy based on the rule of law and not a monarchy is part of its founding premise. Under that premise, elections have consequences, which is why new presidents propose new legislation or lawful policy changes on important matters ranging from American military deployments to artificial intelligence. The system does not permit the president to undo the laws and institutions of the American republic by fiat. When a president operates outside the law, he can hurt millions of people by depriving them of medical care that the law says they should receive and make monetary policy and grant military contracts at his whim to reward his friends. Americans depend on an independent judiciary to serve as a forum for policing the limits of executive power and on independent state and local officials along with an independent media and ideas sector to create space for citizens to assess the country’s condition and understand its civic commitments.
But ultimately, these structures matter most because of what they enable. Over time, their resilience tends to erode when civic and business leaders or the public fail to make use of them, sapping the relevance of fair-minded readings of laws and procedures relative to frenzied dealmaking between individual organizations and an executive branch inclined to coercion. Courts can rule, the media and civil society can truthfully report and analyze, and federalism can offer sufficient respite for Americans of all views to deliberate and vote in elections to come. If the American public and critical elements of the business sector nonetheless view these fights over executive power with apathy or only through the lens of their most short-term interests, then a president acting in bad faith will get away with it.