If We had a Functional Constitution, We Wouldn’t have an Illegal War

MAGA stooges destroyed the rule of law

Donald Trump’s unprovoked and unconstitutional war against Venezuela demolished any notion that we live in a rules-based, constitutional democracy. If the Constitution—which explicitly grants Congress the exclusive power to declare war—were operative, lawmakers would have been briefed before the operation, robust debate would have ensued, and Congress would have voted (or not) to go to war.

Instead, without legal justification, Trump blithely killed scores of civilians on boats, launched an illegal war on Venezuela (killing more civilians), kidnapped its president, and declared he wants to take its oil and “run” a sovereign country. (Aside from its constitutional defects, an unprovoked war to extract oil is a moral disgrace, depriving us of moral standing to contest others’ nations’ wars of aggression.)

While egregious, this is not an isolated assault on the rule of law. Under Trump’s regime, the Constitution has begun to resemble Swiss cheese, or perhaps the redacted Epstein files—displaying more blacked out sections than text. The sections in Article I that establish Congress’s powers have all but been eliminated. In the words of Speaker Emerita Nancy Pelosi, MAGA Republicans “have abolished the Congress.” She accurately observed, “They just do what the president insists that they do.”

Specifically, MAGA lackeys in Congress have allowed Trump to abscond with, among other things, the powers to declare war and make rules regulating the military (e.g., allowing Trump to violate the prohibition on murder of shipwrecked civilians), enact tariffs, establish uniform rules of naturalization (Trump now claims the power to “de-naturalize” enemies), and coin money (no pennies!). Trump’s stooges have also ceded the power to appropriate money from the Treasury (by condoning rescission), and to legislate for the District of Columbia (making a mockery of home rule).

The MAGA Senate gave away its power to confirm “officers of the United States” (e.g., U.S. attorneys), leaving it up to litigants such as James Comey and Letitia James to defend the Senate’s advice and consent role. As for Cabinet officials, MAGA senators have refused to render independent judgment on nominees they know to be unfit, including Pam Bondi, RFK, Jr., and Pete Hegseth. (In acquitting Trump for the insurrection that he staged 5 years ago, MAGA senators put a stake through the heart of the impeachment power.)

United States Capitol Building viewed between columns of the Supreme Court at sunset

The erasure of the Framers’ handiwork does not stop there. The president’s Article II obligation to faithfully execute the law has been deleted as he repeatedly ignores court orders and now contemptuously rejects the notion that our obligations under the United Nations are binding on the U.S. He runs roughshod over First Amendment protections for speech, press, and association, and has attempted to brush aside the 14^th Amendment (affirming birthright citizenship and disqualifying insurrectionists from federal office).

Certainly, the overthrow of our constitutional order could have been stopped by minimally responsible House and Senate Republican majorities. But we cannot ignore the Supreme Court’s responsibility for wrecking the Constitution.

Despite Chief Justice John Roberts’s preposterous ode to the “rule of law” in his year-end report, he and fellow partisan hacks on the Supreme Court have made mincemeat of the Constitution. (In declaring our founding documents to be “firm and unshaken,” he reminds us that “hypocrisy is the compliment vice pays to virtue.”) Roberts’ 2024 majority opinion, devoid of textual or historical legitimacy, granted Trump immunity for virtually all crimes while in office, thereby ushering in his return to office, unprecedented executive overreach, reign of domestic terror, and now an unconstitutional and shameful war for oil. No chief justice has done more to destroy the “rule of law” than Roberts.

Since Trump’s return, Roberts and the other robed-MAGA functionaries have continued to hack away at Article I by bestowing on Trump unilateral power to destroy congressionally enacted departments and override statues (which, for example, establish independent regulatory bodies and mandate spending). Arrogantly disregarding the need for briefing or explanation, the MAGA justices summarily have overturned numerous decisions of lower courts to greenlight Trump’s executive overreach.

It would be useful if members and judges such as Roberts aligning themselves with the “Federalist Society” would actually read the Federalist Papers, which cautioned about the very outcome Trump achieved. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” James Madison warned in Federalist No. 47. Madison’s notion that “the preservation of liberty requires that the three great departments of power should be separate and distinct” now sounds quaint, archaic and foreign.

Before the 2024 election, Protect Democracy warned:

Authoritarian projects cannot succeed without the cooperation or acquiescence of legislatures, courts, and other institutions designed to provide checks and balances. In some cases, authoritarians explicitly rewrite the rules to strengthen executive power and weaken legislatures, while in others they simply stack these competing institutions with lackeys and compliant allies or engage in “constitutional hardball” by manipulating existing loopholes or pushing boundaries of existing laws. Authoritarians also often justify the expansion of executive power with cults of personality and aggrandizement of the trappings of office, while denigrating checks and balances as corrupt obstacles to the popular will.

Put differently, the “Constitution” as drafted and amended over more than two centuries is unrecognizable, and concepts such as “rule of law,” “separations of powers,” and “checks and balances” have become meaningless platitudes. We are left with a wholesale obliteration of checks and balance, which in turn resulted in an illegal war with uncertain consequences.

However, while Trump and his MAGA acolytes certainly have made considerable headway in destroying the exoskeleton of our democracy (a written constitution in which power is divided to thwart tyranny), done incalculable damage to our democracy, ruined countless lives (e.g., fired civil servants, deported hard-working immigrants), endangered our troops, and destroyed our moral standing in the world, we should not conclude the Constitution is gone for good.

We can begin to restore constitutional order with sustained, robust, and peaceful protest to educate the public and hold Republicans responsible for serial outrages. Democrats should be encouraged to use every device to stop the slide into fascism and focus on Trump’s multiple outrages and broken promises. (Prices are up, corruption is at unprecedented levels, and a new illegitimate war is underway.)

With that predicate, Democrats then must run up the score in the midterms, the essential mechanism to halt further constitutional vandalism and set the predicate for democracy’s revival. The latter will require curtailing president powers through elections, legislation, constitutional amendment, and/or judicial decisions; electing a Congress that fulfills its constitutional obligations; and reforming an anti-constitutional Supreme Court by limiting justices’ terms, expanding the court, and shrinking its appellate jurisdiction.

In sum, we must be honest about the constitutional wreckage, the culprits responsible, and the work that we must undertake. If Americans rise to the occasion, they can deliver an historic rebuke to scads of Republicans, allowing the hard work of repair to begin. Our failure to do so would spell catastrophe for democratic recovery.