Sujit Choudhry, a well-known professor at UC Berkeley Law, has spent a lot of time thinking about the state of democracy in the US and abroad. His observations highlight a troubling political reality.
Late last year, when many feared the Trump administration was poised to fire Special Counsel Robert Mueller, former Attorney General Eric Holder tweeted the American people that it was up to them to organize and protest the President should such a thing happen. Choudhry notes that the need to point out a “red line” and mobilize protesters to make sure it isn’t crossed is a sign that constitutional norms are being undermined.
Constitutional Democracies in Crisis? a chapter Choudhry released from his forthcoming book, argues that ignoring constitutional norms is the first step on the road to autocracy. Poland’s Law and Justice Party (PiS), for example, has increased its power by using the existing democratic framework in ways many thought impossible because of constitutional norms.
Choudhry writes that PiS used their initial legitimacy to strategically place judges who would consider them favorably in the event of challenges by other parties and voters. This allowed them to remove the Vice President from power and create the office of Interim President, not subject to the same degree of parliamentary oversight.
For Choudhry, this mirrors the days of Weimar Germany, where democracy was manipulated to allow a dictator to be voted into office before eroding the checks against his power. Given the various ways this strategy can be applied by autocratic parties, it places constitutional crises on a spectrum, which can make it difficult to spot a dictator until they’ve secured power and changed the democratic norms of their respective countries
Choudhry points to the Muslim travel ban as an example of executive overreach. It has been challenged in the courts since the Trump administration tried to implement it, leading it to be rewritten, challenged again, and it is now heading to the Supreme Court for an ultimate decision. If it is decided to be unconstitutional and the Trump administration replies by issuing a different kind of ban, Choudhry writes, it would be a clear indication that constitutional norms in the US have been abandoned in favor of sequestering power.
In that event, Choudhry argues that it will be left up to the courts to act as the true check to the Executive branch’s power. Learn more about Choudhry on blogs.law.nyu.edu.