Cracks in the eroding facade of democracy through legal mechanisms: the United States’ transition to an autocracy / neo-monarchy
Lucie Reed is pursuing a double major in International & Comparative Politics and Middle East Pluralities, graduating in Spring 2027. She grew up between Germany and California.
Introduction
There is a continuous and historical search for order through a political regime, where law serves as a vessel to regulate power and maintain peace. Various configurations of governance have been explored, with democracy a popular favourite (especially in Western culture), whose institution is a mere vein through which fundamental values of community may be expressed. Yet this supposedly concrete, unfailing structure appears to be faltering worldwide. Examples of such demise include Victor Orbán’s subtle engulfment of Hungary through a rewriting of their constitution, Poland’s “attack of the Polish Constitutional Tribunal that centred on the appointment of judges before moving on to a full scale assault on the ordinary judiciary,” and right-wing populism gaining momentum across all societies, creating an environment that is impossible to ignore (Scheppele, 553). Most recently, the United States of America fell victim to the allure of extremist populism. Their inauguration of a charismatic demagogue imbued with a sense of divine ordinance marks the latest erosion of democracy under President Donald Trump. Since the immediate commencement of Trump’s reign, there have been growing signals that the cooperative ‘rule of law’ is being undermined in favour of an absolute ‘rule by law’— a reality where power is consolidated through legal mechanisms rather than distributed equally through democratic processes. This transition, as Trump’s rhetoric, promises, and actions illustrate, reflects the growing shift of the United States towards autocratic legalism. This is an often subtle process where democratically elected leaders manipulate legal institutions to centralise power, (Scheppele, 552) as termites would rot wood. Additionally, this actuality is closely tied with theories of power – specifically those of scholars Hannah Arendt, and Niccolò Machiavelli – providing insight into how power disseminates through legal and political systems. As humanity evolves, and social contracts are altered with subsequent addendums and redactions, basic morals and equality agreements must remain. While the Trump administration is operating within a legal system that is able to challenge their actions, the question remains if legal checks can ultimately stop them from consolidating power. Legal avenues can be tactfully abused in the name of absolutism and control to undermine the fundamental values of democracy. The foundational integrity, legality, and humanity of ‘rule of law’ democracy must be center, so the United States does not fall into a ‘rule by law’ future. They must not simply place a populist bandage over impassioned fear, which Trump’s empire threatens.
This paper examines how Trump’s rhetoric, politics, and legal manoeuvres closely align with the playbook of autocratic legalism outlined by legal scholar Kim Scheppele. By arguing that the United States is undergoing an erosion of democracy through the extortion of law, where one can no longer make moral judgements, to understand the inherent violence of autocratic legalism requires constant revaluation. As Trump acts through legal means and increasingly subordinates the rule of law by executive control and power, this paper argues the notion that Trump is conducting autocratic legal testing, constantly teasing the legal system – pushing it to its limits, challenging it, and stretching it. This paper highlights legal vulnerabilities that enable democratic backsliding and explores potential safeguards against further autocratic drift.
Understanding Autocratic Legalism and Power
Autocratic legalism is a phrase coined by legal researcher Kim Scheppele, who closely analyses what she denotes as the ‘playbook’ autocrats use to quietly undermine democratic institutions from the inside out. As Scheppele explains, “democracies are not just failing for cultural or economic or political reasons. Some constitutional democracies are being deliberately hijacked by a set of legally clever autocrats, who use constitutionalism and democracy to destroy both,” (Scheppele, 547). She clearly explains the manipulation of legal systems to change constitutions, shift the rule of power and law, and fear-monger against ‘the other’ – whatever that may be in a given context. When discussing democratic backsliding, law is a critical factor, if not the crux of democracy’s continued effectiveness. It sustains politics in a dazed haze, vitalizing it yet also having the means to thoroughly destroy it. Autocratic legalism exemplifies, as Scheppele and other scholars argue, that democracy no longer dies from warfare or blatant military coups, but rather through deliberate and sinister actions by “elected officials who systematically attack and ‘hollow out’ the same institutions that enabled their rise to power,” (de Sa e Silva, F., 420). These attacks are labelled as “legal reforms” which “make it increasingly difficult for political minorities and opposition groups to compete and win elections... civil society, democratic institutions, and international actors notice these key power-grabbing moves only when it is too late and they are difficult to resist,” (de Sa e Silva, F., 420-421). Therefore, autocratic legalism marks the transition of society governed by an equal ‘rule of law’ to one at the mercy of ‘rule by law.’ This creates an aching helplessness for the legitimacy of the law and government in the face of charismatic authoritarianism. Another key facet of autocratic legalism is a populist weaponisation of snaring fear and hurling blame, “the leader blames a domestic enemy and soon scapegoats part of the population as an excuse for depriving that group of its rights,” (Scheppele, 571). In this way, the leader’s rule is brandished as a power ‘for and by the people’ but in lieu, secretly manipulating the institution to lawfully ordain themselves as the nation’s supreme being. In this fragile space between democracy and autocracy, the tension remains palpable, as democratic values are undermined not through open rebellion, but through the subtle, legal transformation of the political landscape. Law is a foundational tool designed to uphold an agreed-upon social contract, not a device to exploit for power. Additionally, Scheppele warns about the globalisation of democratic backsliding, providing a roadmap to watch in every political institution.
Then, there is the question of power, and how the ‘rule of law’ and ‘rule by law’ apply it.
Philosopher Hannah Arendt offers a critical framework for understanding the transition from ‘rule of law’ to ‘rule by law,’ for she understands power as the opposite of violence. She declares power as “the ability to act in concert... it cannot be saved or stored up. Instead, it must be continually renewed and regenerated,” (Penta, 215). Thus, in Arendt’s view, true power emerges when people as social animals collectively uphold democratic principles, aligning with the foundations of a rule of law system. Here, all are equal before the law. However, with Arendt’s understanding of violence as power’s opposite, “the disregard of this quality of power means the eventual but certain demise of the structures erected upon it. The temptation to circumvent the demise of such empty structures by resorting to violence cannot save power, but rather carries the forms of organization further from their roots,” (Penta, 215). Hence, when violence replaces power at the centre of governance, the system becomes more aligned with ‘rule by law,’ creating a complex where those in power position themselves above the law instead of being subject to it. This shift is central to autocratic legalism, where law is wielded as an instrument of control rather than a just apparatus. Legal systems can therefore serve as mechanisms for oppression, systematically embedding dominance and violence rather than ensuring fairness. In an authoritarian system, law is a means to an end, with violent power as the governing force.
This tension between legal authority and power is additionally understood through the power of Machiavelli’s prince. Complementary to Arendt’s view on violence, the nature of power Trump wields as a legal autocrat aligns with Machiavelli’s ideal that one must master the appearance of virtue, or at the very least the appearance of consideration, while understanding the necessity for manipulation, “that to have them and always to observe them is injurious, and that to appear to have them is useful; to appear merciful, faithful, humane, religious, upright, and to be so, but with a mind so framed that should you require not to be so, you may be able and know how to change to the opposite,” (The Guardian). Thus, Machiavelli asserts that authority and power are synonymous and lack a moral foundation, creating a dangerous standard for rulers who use morals and virtue signalling, under the Machiavellian guise of national interest, to gain personal power. In this way, Machiavelli removes the moral elements of justice, and the element of justice in political actions. The performative nationalism and populist rhetoric of Trump, with his actions that undermine the legitimacy of the rule of law and the Constitution, echo the violence Arendt warns of and obey Machiavelli’s postulations. In this he tests the extent and will of the legal system in the United States.
Autocratic Legalism: The United States under Trump
Under President Trump, the United States sees the threat of autocratic legalism at its most frightening. This statement, extreme in assertion, comes from a clear understanding of Scheppele’s playbook. While there are many other notable conditions threatening to corrode democracy -- such as distrust of political leaders and institutions, lack of transparency, increased nationalism, supranational governing bodies (such as the United Nations and European Union) which can generate fear of influence with policy, and perceived threats of globalisation -- autocratic legalism and its implications are heavily exposed. Trump began his ascension to power through charismatic orations which promoted division and fear, “in his rambling speech, Trump went off-script and made one of the defining remarks of his campaign: ‘When Mexico sends its people, they’re not sending their best… They’re bringing drugs, they’re bringing crimes, they’re rapists…’ This racist remark became a defining motif of his campaign, associated with his demand to build a wall between the US and Mexico,” (Kellner, 388). With his infamous ‘Make America Great Again’ (MAGA) slogan and nationalistic charisma, Trump presents himself as a saviour of tradition, freedom, security, and even ‘true’ democracy (for ironically, the United States thinks they are above international law as a sort of moral and economic hegemonic mentor to those who cannot be them). Additionally, Trump appeals to ideas regarding divine intervention and Calvinistic pre-determination to govern in his inauguration, “God saved me so that I can make America great again,” (The Guardian). This rhetoric is absurdly dangerous, lighter fluid onto a raging wildfire. His proclaimed martyrdom after an attempted assassination, coupled with the notion that the United States has a “sickness” to which he will be the cure, overwhelms his proposed policy schemes and appeals to the fears of his followers (The Independent). With a captivating and outspoken presence, Trump excels in consolidating power.
After noting that the leader following the playbook of autocratic legalism will have a large and commanding persona, Scheppele explains, “one should first suspect a democratically elected leader of autocratic legalism when he launches a concerted and sustained attack on institutions whose job it is to check his actions or on rules that hold him to account, even when he does so in the name of his democratic mandate… loosening the bonds of constitutional constraint on executive power through legal reform,” (Scheppele, 549). A chronological trace of Trump’s actions from his first term to the present day exposes his hidden intentions and testing of his power as a legal autocrat, starting with a close look at the federal judiciary, executive orders, and lawmaking. In his first term, from 2017 to 2021, Trump appointed over 200 federal judges, three of which are Supreme Court justices (Gramlich). These lifetime appointments “flipped the balance of several appeals courts from a majority of Democratic appointees to a majority of Republican appointees,” strategically using court-packing to ensure a lasting conservative shift in the law (Gramlich). Partially an outcome of the disproportionate reality of a strict two-party system, Trump’s federal appointments in his first term safeguarded his conservative values and served as a mechanism to create a system more favourable to authoritarian control. With his people in power, there is less potential for judicial pushback on his policy or actions, even if they go against the Constitution. This action already undermines the checks and balances that the rule of law demands for survival and compromises the impartiality that courts should have. The Supreme Court holds significant power over many constitutional issues, including voting rights, executive powers, and abortion rights, all highly diverse topics, which Trump manipulates for his own agenda of power. In the federal case Trump v. Hawaii (2018), conventionally known as ‘the Muslim travel ban case,’ the Supreme Court voted in favour for Trump on his executive order 13,769 (EO-1) for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on,” (Harvard Law Review). As the Supreme Court upheld Trump’s travel ban, it reinforces how legal systems can be manipulated to support autocratic governance and shift to a rule of law framework. This executive order additionally undermines the Constitution’s protections against discrimination through an exclusionary and racist targeting of Muslims for ‘national security,’ an ambiguous phrase that can conveniently justify any extreme moves of power. Furthermore, in his most recent election, not only was the federal judiciary’s legitimacy undermined, but both the Senate and House of Representatives concentrated a margin of conservative power. There has now been an utter upending of the intended balance, which the rule of law is sustained by, as the three branches of government are meant to check and balance one another through equitable distribution. In his coming term, there will be no majority safeguarding the opinions of constituents who do not support Trump and his whims, but rather a dominant electorate who obey his every breath.
Beyond insidious appointees inside the judicial branch, Trump continues to enact autocratic legalism and undermine democratic principles through his reaction to impeachment and legal proceedings against him. He even blatantly broke the law through the orchestration of an attempted coup d’état on January 6th, 2021. His two impeachments represent textbook examples of autocratic legalism, where the legal system is weaponised to defend power rather than uphold universal democratic principles. The first impeachment in 2019, stemming from charges of abuse of power and obstruction of Congress regarding his dealings with Ukraine, was not merely a question of whether Trump violated the law; it was an attempt to check the extent of presidential authority and power itself (BBC). The subsequent trial in the Senate, which unjustly acquitted him, further shows how legal processes can be abused and hollowed out when political allegiance outweighs the rule of law, setting a dangerous precedent. The legal framework is no longer a tool for accountability but rather an instrument of political survival. His second impeachment, in 2021, focused on Trump’s incitement of the January 6th Capitol insurrection (BBC). His words and actions inspired a violent assault on the heart of United States democracy, blurring the lines between legitimate political dissent and open defiance of constitutional norms, which is key in autocratic legalism. This attempted coup was a reaction to his election loss by the right-wing militia the ‘Proud Boys,’ as Trump tweeted, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” (BBC). Yet, even after the insurrection, Trump’s efforts to escape legal consequences were not just defensive; they represented an active attempt to subvert accountability. His subsequent pardon of individuals through an executive order further illustrates how Trump views legal mechanisms as subjective to his desires, not upholding the rule of law, but to safeguard his political power and that of his allies.
His most recent actions in his first two weeks as President further exacerbate the pace of the United States’ transition to autocratic legalism. Testing the extent of his power, and the threshold of the public to his debauchery of constitutional principles before he gets reprimanded, Trump continuously undermines the rule of law and challenges democratic norms enshrined in the Constitution. His executive decree to reverse birthright citizenship directly conflicts with the 14th Amendment. It clearly attacks the foundation of American citizenship, which guarantees citizenship to anyone born in the United States (The Guardian). This action is a bold assertion of dominance and lust for powerful control, as it undermines the Constitution’s fundamental protections and signals a broader effort to manipulate legal frameworks to marginalize certain groups. Trump’s steady cultivation of an oligarchy and a national trend in increased separation of power founded in wealth serves as another example of autocratic legalism, as a few select individuals hold disproportionate power and disproportionate wealth. This power structure, which favours those with economic resources, further weakens the democratic ideals of equality and fairness. Furthermore, Trump has issued a series of extreme executive orders which would struggle to be passed through normal democratic processes, alluding to his weaponisation of legal methods to facilitate his agenda. For instance, he withdrew from the Paris Climate Accords and left the World Health Organisation, both attempts to disregard global agreements that involve international cooperation in combating climate change and health crises (The Guardian). As all legal autocrats, he is more concerned with power than the future health of all life. Moreover, Trump’s termination of the diversity, equity, and inclusivity (DEI) initiative in federal agencies signals his opposition to policies that address systemic inequalities (The Guardian). He instead opts to promote a narrative of American exceptionalism, which dismisses the country’s historical struggles with racism, sexism, and other forms of discrimination. These actions consolidate a political framework that privileges one demographic over others, emboldening a populist rhetoric that feeds nationalist ideologies. In addition, Trump has begun a mass deportation of immigrants and is pushing for a mass ‘detention centre’ in Guantanamo Bay, demonizing vulnerable communities. This is Trump’s additional hope to grow his power through physical territory and warfare, “[Trump] refused on Tuesday to rule out the use of military or economic coercion to force Panama to give up control of the canal that America built more than a century ago and to push Denmark to sell Greenland to the United States,” (Sanger D.E., & Shear, M.D.). Furthermore, he has begun to withhold both federal and international aid, holding the public in a frenzy of fear as he sits in on his throne in the White House (The Guardian). These actions paint a clear picture of autocratic legalism, where legal mechanisms are warped to serve a leader’s personal and political interests, undermining democratic principles, the rule of law, and human rights. In such an environment, the law becomes an instrument of power instead of a protector of freedoms, pushing the United States towards a system where the state’s authority eclipses individual rights.
These actions, alone concerning enough and together cause for great alarm and reflection, all manifest through Scheppele’s understanding of the playbook of autocratic legalism which Trump is employing: “not all of these governments followed precisely the same trajectory even though they were heading in the same direction. For example, only some of the legalistic autocrats started to attack the constitution itself immediately, while others waited for some time before doing so,” (Scheppele, 555). Trump is attacking democratic values on every front and has been since his first term as President. His determination to become an autocratic legalist is muffled under his persuasive presence and rhetoric, which becomes clear when observing trends of his decrees and inclination to wield a dominating power.
Conclusion
Nevertheless, democracy is simply a vessel – a means to express community values and dictate law. Despite national corrosion and legal manipulation under President Trump, the social contract of democracy founded on shared understanding, trust, and morals can never be stifled entirely. Human nature is resilient. While temptations of power threaten the stability of community and institutions, they do not deter the fundamental striving for justice that the rule of law seeks to uphold. Humanity remains at the centre at every level – within personal relationships and governmental establishments alike. Though law is currently being weaponised in the United States, it ultimately exists to moderate the social contract, and, when upheld with integrity, to judge truth. A just world begins with awareness and education, but it demands constant reflection and action and, as Arendt knows, renewal. Only through engagement and accountability can justice prevail.
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Image Credits:
https://laut.org.br/en/book-the-path-of-autocracy/
