The Rule of Law in the US is Crumbling
That poses an existential threat to American democracy
At the White House on Monday, President Trump hosted the authoritarian ruler of El Salvador, Nayib Bukele. Reporters asked if Bukele would return a Salvadoran man from Maryland who the US Supreme Court has deemed needs to be returned from his detention in El Salvador. The Trump administration summarily deported the man without due process and has admitted that it was an error. “Of course I’m not going to do it,” Bukele said as Trump smiled.
The rule of law in America is crumbling, and fast. Deportations and detentions of illegal immigrants, visa holders, and even green card holders are stacking up. Many of these actions are occurring without due process and with dubious or politicized evidence, such as the case of the graduate student at Tufts who was taken into custody by plainclothes officers presumably for writing a pro-Palestinian op-ed for the school paper several years ago.
And though the courts have intervened, like with the Maryland man sent to El Salvador, the Trump administration has begun to simply ignore court rulings. The same occurred with a recent flight of Venezuelan immigrants to El Salvador. When a federal judge ordered the plane turned around given the violation in due process, Bukele dialed in on social media to write “Oopsie…too late.”
These aren’t the only transgressions to the rule of law. The firing of civil servants on a mass scale with disregard to the legal authority to do so as well as to process is in the same spirit. The same is true of the threats being lobbed at selected universities and law firms that the Trump administration doesn’t like for one reason or another.
When the rule of law is being violated like it is, democracy is in trouble. The rule of law is critical to a well-functioning democracy. It entails equal treatment under the law, clear and fair processes of enforcement, independent arbitration and adjudication by a competent judiciary, and accountability in the case of violations. The rule of law also must entail basic human rights, otherwise it rings hollow.
Countries around the world vary widely in the extent of their rule of law (see map). But by and large it is rather exceptional. While places like northern Europe, western Europe, the US, Canada, Australia, and Japan score rather well, most countries have a weak or absent rule of law. It’s also very hard to achieve. It has taken most countries many decades or even centuries to achieve strong rule of law. Without a strong rule of law, it is possible to have a democracy, but it is probably a rather flawed or limited one.
A lot of Americans won’t care much – and far fewer will take action – when illegal immigrants or visa holders are roughed up and their rights are ignored. And many also aren’t very invested in the skills and employees of the federal bureaucracy, even though it’s crucial to making government work and many people don’t like the way the Trump administration is going about cutting the size of the federal workforce.
That’s probably at least part of the reason why the administration has started there. It won’t face the same sort of opposition it might face if, for instance, it started unlawfully detaining American citizens.
But make no mistake: this is what the erosion of democracy looks like in action. I have studied and taught about democracy and authoritarianism for two decades, and I’ve written about it extensively. I have conducted survey experiments on support for transgressions against American democracy. I was doing fieldwork in Venezuela in 2009 as the country voted to scrap presidential term limits. I have colleagues and friends who carefully follow democratic erosion in places like Hungary, India, Turkey, El Salvador, Mexico, and the United States, or who have studied it in countries like Brazil, Poland, Germany, or Italy.
Democracies these days rarely end at the barrel of a gun as military officers storm the presidential palace or shutter Congress. Instead, it occurs slowly and piecemeal by elected incumbents who centralize power, dismantle checks and balances, and weaken or muzzle civil society – just as is occurring now in the US.
There is a playbook here, and one I’ll surely be writing about in upcoming posts here at The Good Society. And while there is a clear protagonist now, it’s worth noting that democratic erosion can set off its own dynamics that can persist even if incumbents change – something I’ve written about in a previous post. In other words, once the rule of law or even democracy is lost, it becomes very hard to restore it quickly.
Note: Leading image is of the Supreme Court at dusk (taken by Joe Ravi, CC-BY-SA 3.0). The map of rule of law is from 2024 via the International Property Rights Index at https://internationalpropertyrightsindex.org/.