Americans, ever eager to indulge in their exceptionalist fantasies, have long believed that their constitutional system is a model of restraint, that the document framed in Philadelphia in 1787 provides a bulwark against despotism. This belief, held with the conviction of religious dogma, has taken a beating in recent years.

The fear gripping much of the American public is unprecedented in modern times. Trump’s enemies list, his open hostility toward dissent, and his barely veiled threats to jail political opponents suggest that he intends to govern with even fewer constraints than before. The problem, however, is not Trump per se, but rather the legal and constitutional architecture that makes his ambitions entirely plausible.

For decades, Americans have comforted themselves with the notion that legal safeguards will prevent executive abuses. Yet, Trump’s first term already exposed these supposed checks as flimsy and illusory. The Supreme Court, that lofty guardian of constitutional principle, signaled its willingness to accommodate even the most dubious assertions of executive authority, most notably in Trump v. Hawaii, where it upheld his travel ban targeting several Muslim-majority nations. That decision, presented in the language of legal neutrality, was, in reality, an endorsement of raw executive power grounded in malice exercised with the flimsiest of national security pretexts.

More recently, the Supreme Court has done away with even the pretense of meaningful presidential accountability. In Trump v. United States, the Court took the bold step of placing criminal immunity within arm’s reach of any president willing to claim that his misdeeds were undertaken “officially.” The decision, delivered with the solemnity of a judicial pronouncement, was, in practice, a blank check—one that future presidents, not just Trump, will be all too eager to cash.
And should the Court ever find itself in the unenviable position of ruling against Trump in some future matter of legal consequence, it would face a predicament rarely acknowledged in polite constitutional discourse: what exactly could be done if Trump simply ignores the ruling? There exists no mechanism for compelling compliance should a president, shielded by a loyal attorney general and a pliant Justice Department, refuse to abide by a judicial decree. In theory, he could be impeached; in practice, Senate Republicans have already demonstrated that accountability is contingent on political convenience, not constitutional principle.

Even more troubling is the president’s nearly unchecked pardon power, a feature of the Constitution that appears to have played itself out less as a tool of justice than as a safeguard against justice itself. Unlike in most democracies, where executive clemency is subject to legislative oversight or review, the U.S. president wields an absolute pardon power that can be deployed with impunity. Trump, ever the enthusiastic beneficiary of this system, has already provided a preview of how he intends to wield this authority. He has rewarded political loyalists, shielded allies from legal consequences, and signaled to future accomplices that obedience will be met with absolution. This is not an abstraction; it is a functional dismantling of the rule of law.

Of course, none of this is without precedent. Before Trump, there was Bush and Cheney, who also ruled under the illusion of constitutional restraint. The Bush administration, in the aftermath of 9/11, established a blueprint for executive overreach that has since become standard practice. Bush, with Cheney and a cadre of legal functionaries such as John Yoo, built an entire infrastructure of extrajudicial detention, warrantless surveillance, and legalized torture.

The administration pushed through the USA PATRIOT Act, which vastly expanded government spying powers, instituted extraordinary rendition programs to outsource torture, and established the legal black hole of Guantanamo Bay—where detainees were held indefinitely without trial, subjected to “enhanced interrogation” methods that bore an uncanny resemblance to medieval torture techniques.

The mere specter of terrorism was used to justify an unprecedented erosion of civil liberties. Habeas corpus, that ancient safeguard against arbitrary detention, was rendered all but meaningless. Warrantless wiretapping, once an anathema to constitutional governance, became the norm. The National Security Agency (NSA) was effectively unleashed on the American public, collecting phone records and metadata en masse, all in the name of national security. The Bush administration’s legal theory was simple: the president, in his role as commander-in-chief, could do virtually anything in the name of fighting terrorism, including violating the Constitution itself.

The lesson was clear: when an administration insists that national security demands extraordinary measures, constitutional restraints become little more than a formality. The same deference afforded to Bush and Cheney—where the courts, with rare exceptions (such as Hamdan v. Rumsfeld and Hamdi v. Rumsfeld), and Congress played their roles as passive spectators—now sets the stage for Trump’s second act.

Where Bush justified indefinite detention and torture, Trump justifies political retribution and purges of the civil service. Where Bush invoked national security to bypass legal protections, Trump invokes the same rationale to circumvent democratic norms. The public may have been disturbed by the authoritarian overreach of the Bush years, but it was never properly repudiated. Instead, it became institutionalized, ensuring that future presidents—especially one with as little regard for the rule of law as Trump—could inherit the same tools with far fewer constraints.

Indeed, the judiciary has repeatedly reinforced the notion that when it comes to foreign affairs, executive power is not to be questioned—even in cases involving grave human rights violations such as genocide. In Defense for Children International-Palestine v. Biden, a federal court in California faced a case that should have, by all accounts, tested the limits of executive impunity. Plaintiffs sought to hold the U.S. government accountable for providing military aid to Israel, alleging that American tax dollars were facilitating genocide and war crimes in Gaza. The court, in keeping with long-standing doctrine, dismissed the case, reaffirming that even in the face of credible allegations of complicity in atrocities, the executive branch remains untouchable.

The logic of deference is almost plenary when national security and state secrets are invoked. In United States v. Zubaydah, the Supreme Court ruled that the CIA’s use of torture at a secret “black site” was a matter too sensitive for public scrutiny. Abu Zubaydah, who endured waterboarding, confinement in small boxes, and other medieval brutalities, sought only to depose the contractors responsible for his abuse. The Court, with remarkable efficiency, ensured that his case would never see the light of day, invoking the ever-expansive doctrine of state secrets. The irony, of course, is that other nations have already acknowledged and compensated victims of CIA torture. The European Court of Human Rights forced Poland to pay Zubaydah damages, and Lithuania was similarly compelled to compensate another detainee. But in the United States—the nation that orchestrated these abuses—accountability remains as elusive as ever.

The belief that the Constitution inherently protects against despotism has always been an illusion. From slavery and the genocide of Indigenous peoples to Jim Crow, the internment of Japanese Americans, the Red Scare, the “war on terror,” and repression of dissent against Israeli genocide, American history reveals that power consistently trumps justice. The Constitution has not been a shield against oppression, but a legal instrument easily bent to serve the ambitions of those who wield authority. Trump, far from being an aberration, is merely the latest and most explicit beneficiary of this system. The crisis of American democracy is not that it has failed to live up to its ideals, but that those ideals, from the very beginning, were never quite what they seemed.