Cruelty and Loyalty

On zone-flooding fatigue and the tenets of autocracy

In case anyone forgot, living with a Trump presidency is exhausting.

Steve Bannon, an important advisor to the first Trump White House, recapped Trump’s strategy last week: “Monday, you hit, you flood the zone. Second week, you’ll flood the zone.” The original 2018 Bannon quote is even more revealing: “The Democrats don’t matter. The real opposition is the media. And the way to deal with them is to flood the zone with shit.”

In his first week, President Donald Trump did just that. He signed myriad executive orders that ranged from authorizing a draconian immigration crackdown to abolishing federal anti-discrimination policies to declaring “biological truth” on gender to unsettling the leadership of the civil service to threatening security of citizenship. He abruptly stopped the flow of funds for foreign aid and biomedical research, fired many independent officers and civil servants whose terms had not expired, removed crucial watchdogs across the government, undermined the security clearance system, disabled crucial government oversight bodies, and pardoned all of the January 6 convicts—as well as all those who had criminally blocked abortion clinics. In an executive order that accused the prior administration of weaponizing the federal government against their critics, he weaponized the federal government against his critics. Instead of “tak[ing] care that the law be faithfully executed,” he brazenly indicated that he would pick and choose which laws to enforce. For good measure, he renamed part of the Gulf of Mexico. And that’s just a mere sampling.

It was a lot to take in. That’s the point.

When aspirational autocrats move to destroy democracy, they often move so fast on so many fronts that critics are simply disoriented.

That happened in Hungary when Viktor Orbán, armed with thousands of pages of laws—some of which had been drafted by private actors before he took office—rewrote the entire constitutional order in a year. It happened in Venezuela and Ecuador, where Hugo Chávez and Rafael Correa immediately disabled their parliaments, launched constitutional conventions, and produced autocratizing new constitutions as their opening acts. It happened in Poland, where the Constitutional Tribunal was packed with unlawfully appointed judges in the opening days of a new government—before that government moved quickly to compromise the entire judiciary by law. These days, when aspirational autocrats take office, they often act with lightning speed to entrench themselves in power while the political opposition struggles to comprehend the magnitude of what they are seeing.

We can learn from the experience of these other countries: It is crucial not to lose sight of the big picture. Details can overwhelm.

So what’s the bigger picture that emerges from Week 1 of Trump 2.0? Two themes predominate: Cruelty and Loyalty. Pairing cruelty and loyalty is at the core of autocracy.

Cruelty

Cruelty has long been part of the Trump brand. But last week saw cruelty etched (in Sharpie) into law and therefore made official policy of the US government.

Cruelty runs throughout the draconian crackdown on foreign nationals that had long been foreshadowed, but the extra elements of viciousness scattered throughout the Trump administration’s pronouncements reveal that their purpose is to ensure that no undocumented person or anyone who knows or looks like an undocumented person feels safe. When the first week’s roundups of the undocumented did not generate enough numbers for the president, Trump set quotas for immigration arrests.

The executive order commanding no-holds-barred immigration enforcement was supplemented over at the Department of Homeland Security with two directives. One repealed the guidance to Immigration and Customs Enforcement (ICE) that had prevented immigration enforcement in “sensitive” areas like schools, hospitals, and places of worship. Now those sites are fair game. The other signaled that temporary protected status granted to those who came from countries that were wracked by conflict or had become failed states was about to change, so that they would have to return to a case-by-case assessment of their asylum claims. But in another action, the US refugee admissions program was suspended indefinitely, including for those whose admission was imminent, so that no asylum claims would be processed. Week 1 declared open season on people out of status, including many who had been in status just moments before.

Even foreign nationals who are here legally or planning to travel here are thrown into uncertainty. The birthright citizenship executive order takes aim not only at children of undocumented mothers but also at children of those who were admitted legally with temporary visas. The anti-terrorism executive order promises that future visas would be issued only after applicants “are vetted and screened to the maximum degree possible” in a process not limited to suspected terrorists. In addition, all nationals from countries that don’t meet the new administration’s unclear standards for information verification will have their applications summarily denied. Of course, the countries that may have trouble meeting these new standards will be precisely the conflict zones and failed states that people may urgently need to leave. It now appears that the Trump administration is developing new, vague, and highly manipulatable standards for foreign nationals to be in the US, for example denying entry to those who may seek “replacement of the culture on which our constitutional Republic stands.”

Cruelty is also visible in the revenge that animated the executive order on the death penalty. President Biden had commuted the sentences of most of those on federal death row because Trump had carried out an execution palooza in his final months in office last time. For those whose death sentences Biden commuted, the executive order ominously instructs the Attorney General to “ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.” The AG is also instructed to encourage states to use the death penalty wherever possible and to urge the Supreme Court to remove barriers to executions. Trump even pledged a steady supply of lethal injection drugs to states that wanted to speed executions.

It’s not just outsiders or convicts who are the targets of Trumpian cruelty. By executive order, Trump summarily removed the security clearances of officials from the intelligence community who challenged policies that Trump had championed, and revenge continued as his government removed security protection from those state officials who have been the victims of credible threats but who had criticized Trump. At the same time, another executive order granted summary new security clearances to people who have not been vetted for security risks or potential susceptibility to blackmail, thus putting national security itself at risk for us all.

Revenge extends also to those who “weaponized” the federal government against Trump as he vowed in another executive order to use all powers of the federal government “to correct past misconduct by the Federal Government related to the weaponization of law enforcement and the weaponization of the Intelligence Community” in order to take “appropriate remedial actions.” That puts targets on the backs of those who have sought to properly and fairly enforce the law, even when that meant taking legal action against Trump himself.

For those involved in distributing foreign aid, often in very difficult circumstances, or doing biomedical research, often in long-term projects for which continuity is essential, Trump’s stop-work orders last week froze all projects in place, regardless of urgency. Both foreign assistance and scientific research work require infrastructure that must be tended. Halting everything with no warning or transition may cause this infrastructure to crumble and thus have much longer-term effects not only for the people who might have benefited from the results of this work but also for the people who were carrying it out.

And of course, the cancellations of previous executive orders that ensured non-discrimination against people of color and women was accompanied by a new executive order that deemed “diversity, equity and inclusion” programs to be “illegal and immoral.” Another executive order ordered the termination of “all discriminatory and illegal preferences” across the government. All government employees that have worked to advance equity and non-discrimination in the federal workplace were put on paid leave, but many suspect that this is a prelude to dismissal.

Women and gender non-conforming persons were targeted with an executive order that reaffirmed the “biological reality of sex.” Declaring that there are only two sexes that are “not changeable and are grounded in fundamental and incontrovertible reality,” the executive order announced that “gender identity . . . cannot be recognized as a replacement for sex.” The effect? All government-issued identity documents must now classify everyone as M or F and all agencies must take steps “to end Federal funding of gender ideology.” Trans people are erased from federal view and more assaults on gender fluidity are coming. These pronouncements have real victims and are cruel.

Loyalty

But Trump’s zone-flooding in his first week is not just about cruelty. It is also about rewarding—and requiring—loyalty. Of course, the appointments that Trump has made to key positions in his administration reward those who have stuck with him even if they otherwise have not met the minimal qualifications for office. But now that Trump is back in the presidency, his first week of governing make clear that he will now demand the loyalty of all those who work in the federal government writ large.

In Week 1’s series of executive orders that affect the federal bureaucracy, demands for loyalty are persistent. “Restoring accountability” to policy-making civil service positions is accomplished by ensuring that “career senior executives” know that they are serving at the pleasure of the President (through the so-called Schedule F). While people in these positions

are not are not required to personally or politically support the current President or the policies of the current administration [, they] are required to faithfully implement administration policies to the best of their ability, consistent with their constitutional oath and the vesting of executive authority solely in the President. Failure to do so is grounds for dismissal.

In short, if they don’t follow orders given by the president, they are out.

This elision of the constitutional oath with obedience to the president is produced by the “unitary executive theory,” which holds that the Constitution vests all executive power in one person with the power to command the entire executive branch as an absolute dictator whose will must be obeyed. Under this theory, loyalty is constitutionally required.

Loyalty appears as a job description elsewhere in this pile of executive orders. In the executive order on “Reforming the Federal Hiring Process,” the new federal hiring plan will “prevent the hiring of individuals who are unwilling to defend the Constitution or to faithfully serve the Executive Branch.” The “or” in that phrase should give us pause because it is not clear whether faithfully serving the Executive Branch is an alternative to defending the Constitution or an additional requirement. The unitary executive theory merges the two so that loyalty to the president is what the Constitution demands.

Loyalty and cruelty found their joint apex in the blanket pardons of the January 6 convicts. Those who stormed the Capitol had tried to keep Trump in power after he lost the 2020 election, and he rewarded their loyalty with freedom. But freedom for them was cruelty for others. Those who had been victims of the January 6 felons now worry that the freed attackers would come after them. Those who turned in or testified against January 6 felons now fear for their lives. Pardoning militia members and those who were willing to overthrow the government on his behalf signals that everyone else who defends Trump can do so with impunity. Those who are critical of Trump now need to wonder whether they are safe.

Without Fear or Favor

Governing through cruelty and loyalty reverses the basic premise of the rule of law, which is that people should be able to live without fear or favor. In a democratic and constitutional government, people are supposed to be treated with equal respect and with guaranteed rights under a government that is not permitted to entrench itself in power. But when generating fear through cruelty and demanding favor through loyalty become the central organizing principles of government, then rights fray, checks on government fail, the entrenchment of a particular leader begins, and autocracy is on the march.

Ernst Fraenkel, a Jewish lawyer writing from inside Nazi Germany in the late 1930s, described what he saw as a legal practitioner. For most Germans, life went on as usual. Laws were enforced as written; the courts operated predictably. He called this the Normative State. But there was another parallel state operating at the same time into which people could be cast when the government had decided to target them. This was the Prerogative State, in which arbitrariness reigned and all safeguards of law disappeared. This Dual State relied on the surface appearance of normality from the Normative State to whitewash the use of emergency powers, enabling acts, special decrees and discriminatory laws that created a Prerogative State where cruelty was the order of the day. Hitler’s government counted on the appearance of the Normative State to avert people’s eyes from the Prerogative State.

Fraenkel’s description of the Dual State should warn us that we cannot be complacent because the United States just had a free and fair election followed by a peaceful transfer of power or because the Democratic Party now acts like they can will normality into existence by enacting their half of normal politics. Even the most terrible dictatorships that history has produced found ways to make life seem normal for most people, as long as they demobilized politically and didn’t challenge the dictator’s hold on power. To understand what kind of government we have, we need to look at how that government treats those whom the leader believes are his enemies as well as those who are on the margins of society.

Trump’s parade of executive orders starts to build the foundations of a Dual State. With cruelty dispensed to enemies and favor to friends, he has bullied his way into power and now proposes to use the federal government to amplify his threats. Many vulnerable people in the US now live in fear, as Bishop Budde movingly explained to Trump directly on his first full day in office. She might have added that those who fear Trump include members of Congress and the judiciary and the media who, as a result of this fear, are now failing in their duties to check his powers. Out of fear, some are desperately trying to appear to be loyal or at least trying to acquiesce by telling themselves that democratic deference is due to those who win elections no matter how they choose to govern. But those unwilling to live in fear or curry favor are leaving government or disengaging from politics. Democracy dies when no one defends its promise of a life free from fear and without the requirement to grovel.

Buried in everything that happened in this exhausting first week of the new Trump administration, then, is this important big idea: Trump seeks to govern through cruelty and loyalty. Defending our constitutional democracy requires that we don’t look away when cruelty is visited on members of our community and that we refuse to allow our democracy to crumble into personalistic attachment to the leader. To stand up to this will require a unity of purpose so that we cannot be divided by fear and it will require that we defend the principle that no man is above the law—nor can he change the law to put himself above it. Those of us concerned about the future of our democracy need to regroup and prepare for a long hard fight. We cannot let ourselves be divided and conquered—or distracted by everything that is flooding the zone right now.

Kim Lane Scheppele

Princeton University