The president announces non-existent emergencies to invoke extraordinary powers – and neutralizes the opposition

This month, we learned that, in the course of bombing a boat of suspected drug smugglers, the US military intentionally killed two survivors clinging to the wreckage after its initial air assault. In addition, Donald Trump said it was seditious for Democratic members of Congress to inform members of the military that they can, and indeed, must, resist patently illegal orders, and the FBI and Pentagon are reportedly investigating the members’ speech. Those related developments – the murder of civilians and an attack on free speech – exemplify two of Trump’s principal tactics in his second term. The first involves the assertion of extraordinary emergency powers in the absence of any actual emergency. The second seeks to suppress dissent by punishing those who dare to raise their voices. Both moves have been replicated time and time again since January 2025. How courts and the public respond will determine the future of constitutional democracy in the United States.

Nothing is more essential to a liberal democracy than the rule of law – that is, the notion that a democratic government is guided by laws, not discretionary whims; that the laws respect basic liberties for all; and that independent courts have the authority to hold political officials accountable when they violate those laws. These principles, forged in the United Kingdom, adopted and revised by the United States, are the bedrock of constitutional democracy. But they depend on courts being willing and able to check government abuse, and citizens exercising their rights to speak out in defense of the fundamental values when those values are under attack.

David Cole is the Honorable George J Mitchell professor in law and public policy at Georgetown University and former national legal director of the American Civil Liberties Union. This essay is adapted from his international rule of law lecture sponsored by the Bar Council.