Eric Posner, a law professor at the University of Chicago, has posted a fascinating reflection on whether the Constitution and American political institutions are strong enough to constrain (potential) President Donald Trump, assuming he chooses to behave like a dictator. Here’s an excerpt:
Let’s consider one of Trump’s proposals: to strengthen libel law so that he can punish those who criticize him. Could he do this? He cannot do it by executive order, and he probably cannot do it even if he persuades Congress to pass a law. First Amendment doctrine is clear: a court would strike down the sort of libel law that Trump advocates (or appears to advocate).
But there are ways that Trump could maneuver around this barrier. If he can appoint flunkies to head the Department of Justice and the FBI (Chris Christie, maybe?), they can order agents to spy on a political opponent and bring prosecutions. All that is needed is a reasonable suspicion of law violations, and there are so many laws that any prominent person, particularly journalists and opposition politicians, might violate even if inadvertently—campaign finance laws, tax laws, business licensing laws, and secrecy laws come to mind, depending on the person’s activities—that an excuse for audit, inspection, or surveillance can be ginned up. Judges can interfere at various steps along the way; whether they do will depend on whether there are plausible reasons to think that the person has broken a law (think of Hillary Clinton, for example). While nothing may come of the investigation, the risk of such harassment, if pursued vigorously enough, may deter opposition to Trump at the margin.
To be fair, I think Posner may be overplaying his hand a bit by suggesting so strongly that Trump will indeed choose to behave like a dictator should he assume office. Moreover, Posner’s suggestion, found elsewhere in his post, that people flock to Trump because they “yearn for a strongman who will protect them” is too condescending to take seriously. Still, it’s not out of the question that Trump will follow his predecessors (particularly George W. Bush and Barack Obama) in expanding the centralized powers of the Presidency. That shouldn’t surprise Posner one bit, particularly since he, along with Harvard professor Adrian Vermeule, announced the death of the Madisonian system of checks-and-balances in their 2010 book The Executive Unbound.