The Future of American Democracy: Legal Precedents and Institutional Risks
February 26, 2025 | Is A Constitutional Convention in the Cards…and More Critical Constitutional Questions
In a recent America at a Crossroads discussion, UC Berkeley Law School Dean Erwin Chemerinsky, a leading constitutional law scholar, examined the state of American democracy and the increasing threats to legal and institutional norms. The conversation centered on how the Trump administration’s executive actions, legal battles, and agency restructuring efforts could permanently alter the balance of power in the U.S. government. From efforts to limit judicial oversight to challenges against long-standing legal precedents, Chemerinsky highlighted the potential consequences of an administration willing to test or disregard constitutional limits.
The Judiciary’s Role in Preserving the Rule of Law
The judiciary has long played a critical role in upholding constitutional boundaries, ensuring that no branch of government oversteps its authority. However, Chemerinsky noted growing concerns about the Supreme Court’s recent rulings, particularly in Trump v. United States, which granted the president immunity for official acts taken in office. This decision, he argued, undermines the fundamental principle that no one is above the law.
Additionally, lower federal courts have challenged the Trump administration’s refusal to comply with congressional spending directives, its attempts to eliminate funding for diversity, equity, and inclusion (DEI) programs, and its resistance to court orders related to executive overreach. These legal battles will test whether the courts can effectively constrain presidential power or if their authority will be ignored.
Federal vs. State Power: A Battle Over Authority
A significant point of contention is the relationship between state and federal authority. Trump’s attempt to block California’s 2035 ban on new gas-powered vehicle sales is one example of federal intervention in state policies. While federal law can preempt state regulations, Chemerinsky emphasized that only Congress—not the president alone—has the authority to overturn state laws.
Similarly, Trump’s move to revoke funding for the United States Agency for International Development (USAID) raises legal concerns. Congress, not the executive branch, controls funding for federal agencies. Any unilateral action by the president to defund or eliminate an agency without congressional approval violates the Constitution’s separation of powers.
Dismantling Federal Agencies and Civil Service Protections
One of the most radical potential shifts in governance involves the Trump administration’s push to eliminate or restructure federal agencies. Chemerinsky pointed to the Supreme Court’s decision to overturn the Chevron Doctrine, which previously allowed federal agencies to interpret ambiguous laws in areas under their jurisdiction. The ruling now shifts the power of interpretation back to the courts, limiting agency discretion and potentially weakening federal regulatory power in areas like environmental protection, labor rights, and public health.
Additionally, the administration has floated the idea of removing civil service protections, making it easier to fire federal employees and replace them with political loyalists. This could transform federal agencies from independent entities into extensions of presidential power, further eroding institutional checks on executive authority.
Checks and Balances Under Threat
The removal of U.S. attorneys, the reshaping of law enforcement agencies, and the potential political influence over the military all contribute to an erosion of traditional checks and balances. Chemerinsky highlighted the administration’s use of the unitary executive theory, which asserts that the president has full control over the executive branch, including the ability to fire agency heads and other officials at will.
While past Supreme Court rulings have upheld limits on presidential authority, Chemerinsky warned that the current Court may reverse precedent, granting the president more unilateral control. If such rulings continue, the power of the legislative and judicial branches to act as counterweights to the executive could be permanently weakened.
The Role of Public and Legal Resistance
In response to these challenges, Chemerinsky emphasized the importance of public engagement and legal advocacy. Organizations fighting against executive overreach rely on public support, donations, and activism to mount legal challenges. Additionally, voters must recognize that the balance of power in government depends on institutional integrity, and that once eroded, these safeguards are difficult to restore.
Conclusion
Chemerinsky’s discussion underscored a stark reality: the future of American democracy depends on the enforcement of constitutional limits on executive power. The courts, Congress, and the public must play an active role in preserving legal and institutional norms. As legal battles unfold over presidential authority, judicial independence, and agency oversight, the survival of the rule of law remains at stake.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.