The Emperor Has No Claws

Trump is but a paper tiger in the very places he asserts he can act with impunity

Illinois Governor JB Pritzker Photo by Scott Olson/Getty Images U.S. President Donald Trump Photo by Andrew Harnik/Getty Images Thousands of protesters gather in downtown Los Angeles for an anti-Trump "No Kings Day" demonstration Photo by Spencer Platt/Getty Images

On Wednesday, during a cabinet meeting, Donald Trump declared he has the “right to do anything I want” because “I’m the President of the United States.”

It was a telling summary of not only his state of mind but where we find ourselves as a nation: teetering on the brink of autocracy and fascism. Some argue we are already plunged deep into it.

But as many commentators have urged, we must watch what Trump does, and not get sucked into what he says. And when we zoom out a bit and examine strictly what he has tried to do, ignoring his constant lies and bluster, there’s quite a different picture than the monarch who can do anything he wants.

The markets understand that Trump’s word is not worth much. His constant threats and inevitable retreats on tariffs have led to the “TACO” presidency, because Trump really does “always chicken out” in the end.

Yet while international actors and markets have come to understand this well and adjust their responses accordingly, those of us caught in the flood zone of his executive orders, troop deployments and weaponization of the budget and the justice system, to name a few, often lose sight of the limitations of his power and the likelihood that he will chicken out at home, just as he has internationally.

Today, I want to discuss four significant constraints upon the man who believes he can do anything simply because he is the President of the United States. These are powerful forces that act every day to limit his options and rein him in. I want to lay them out plainly, not only to give us some basis for hope that we can survive his second term (however long or short it winds up being) but also to highlight where we should focus our own attention and lend our support.

The law

Trump knows he can’t pass most of his fascist agenda through Congress due to the power of Democrats in the Senate to filibuster any such legislation. (His “One Big Beautiful Bill” was not subject to filibuster under the reconciliation rules.) So he’s trying to accomplish by executive orders what he can’t achieve by normal legislative means.

But the President’s ability to change the game on the ground through executive order is nearly always limited by law, and even the Trump White House knows that its actions will have to pass legal muster. When you read these orders, you can quickly find the legal “hook” upon which each of them supposedly hangs.

But here’s the thing: Most of those hooks are terribly brittle, and once challenged, the whole thing may collapse.

Alien Enemies Act “invasion” proclamation

Take Trump’s efforts to round up Venezuelan “criminal” migrants and render them to El Salvador’s CECOT prison. He had to reach back to a law from the 18th century called the “Alien Enemies Act,” which had only been invoked twice since its passage, in order to justify his actions.

The idea that we are being “invaded” by Tren de Aragua gang members, sent deliberately by the Maduro regime in Venezuela to our shores, has no basis in fact. And it failed in court under even the most cursory scrutiny.

Lawfare has been tracking cases challenging Trump’s proclamation and invocation of the Alien Enemies Act to justify the summary deportation of Venezuelan migrants. Of the eight federal judges who have heard these cases, only one (Judge Stephanie Haines in Western Pennsylvania) has found his actions to be valid. Seven judges in Central California, Colorado, the Southern District of New York, and the Northern, Southern, and Western districts of Texas (yes, Texas) all ruled Trump’s proclamation to be invalid.

Ultimately, in a tacit acknowledgement that it was losing this fight, the Trump White House pulled hundreds of detainees out of CECOT and sent them instead to Venezuela. But the legal challenges to their initial deportations continue, and we have heard little from Trump of the bogus “invasion” by Tren de Aragua since.

“National emergency” power on tariffs

Trump’s entire authority to raise and lower tariffs, which has proven a disturbing and damaging hallmark of his second term, is similarly built on legal quicksand. A unanimous panel of the Court of International Trade sitting in New York City, and, recently, apparently a majority of the Federal Circuit sitting en banc to review that decision, understand this well.

Tariffs are a tax, which means the power to impose them rests with Congress, not the White House. Trump nevertheless claims he has the power to impose such taxes under the International Emergency Economic Powers Act of 1977 (IEEPA) and the National Emergencies Act of 1978. He argues that these laws give him the right to address a “national emergency” such as a large and persistent trade deficit and an alleged crisis of fentanyl trafficking from Canada.

But the trade deficit has been around for decades, and the amount of fentanyl crossing our northern border is laughably small. If the president can simply declare each to be a national emergency and impose whatever tariffs he’d like, this allows the tail to wag the dog. And if Congress had truly wanted to delegate its own core taxing power to the executive branch, it would have done so clearly and expressly. Instead, as the International Court of Trade found,

Because of the Constitution’s express allocation of the tariff power to Congress…we do not read IEEPA to delegate an unbounded tariff authority to the President. We instead read IEEPA’s provisions to impose meaningful limits on any such authority it confers.

It found the law “at the very least does not authorize the President to impose unbounded tariffs. The Worldwide and Retaliatory Tariffs lack any identifiable limits...”

Further, “IEEPA’s limited authorities may be exercised only to “deal with an unusual and extraordinary threat with respect to which a national emergency has been declared . . . and may not be exercised for any other purpose.” Because the tariffs on Canada did not actually even try to deal with the alleged fentanyl “emergency,” the specific Canadian tariffs were also deemed invalid.

The White House appealed, and it somehow got assigned a panel comprising the only three Trump appointees on the Federal Circuit, who put a stay on the International Court of Trade’s ruling. But the plaintiffs sought review by the entire Federal Circuit, and at oral argument in July, the judges appeared unimpressed.

“One of the major concerns that I have is that IEEPA doesn’t even mention the word tariffs anywhere,” said Judge Jimmie Reyna. “It’s just hard for me to see that Congress intended to give the president in IEEPA the wholesale authority to throw out the tariff schedule that Congress has adopted after years of careful work, and revise every one of these tariff rates,” remarked Judge Timothy Dyk.

This question is ultimately headed to the Supreme Court, and that’s always a wild card. But the bottom line is this: As with his efforts at summary deportations, on tariffs, Trump simply doesn’t have the absolute right to do anything he wants. There are laws establishing the bounds of his power. And while litigating those cases takes time—often a maddening amount—Trump’s overreach is always subject to being knocked back. And that means he must proceed with the law in mind.

Trump has attempted to do so by invoking the IEEPA and the National Emergency Act in his tariff orders. But the courts may soon declare his tariffs entirely invalid.

Justifying federal troop presence

Trump’s lawyers appeared before Judge Charles Breyer in San Francisco to defend yet another massive overreach by the White House concerning its federalization and deployment of National Guard troops to Los Angeles. To justify this action, Trump reached back to another seldom-used statute known as Title 10.

Title 10 Sec.12406 permits the federalization of National Guard troops under very limited circumstances, including where “there is a rebellion or danger of a rebellion against the authority of the Government of the United States.” Trump claimed that the ICE protests in Los Angeles constituted such a “rebellion” and used it as grounds to federalize and deploy thousands of troops to L.A.

This is itself a dubious position, but the Ninth Circuit found that the deployment was lawful and, presumably, that it was up to the White House to decide what counts as a “rebellion.” But more recently, Trump has claimed he wants to send the National Guard into blue cities such as Chicago and New York, not to put down a rebellion, but in order to “crack down on crime.”

Crime prevention is a local law enforcement function, not something for the U.S. military to engage in absent extraordinary circumstances. And Trump can cite no legal basis for federalizing National Guard troops based solely on an alleged desire to reduce crime.

Indeed, Trump can only get away with what he’s currently doing in D.C. because he, as the President, is the commander of the Washington D.C. National Guard, and D.C. itself is not a state but rather subject to control by the federal government under the Home Rule Act.

It’s another matter entirely for Trump to attempt this move with one of the 50 states. And that leads us into the next big constraint upon Trump’s authoritarian ambitions.

The Blue States

The U.S. is a bit better suited than smaller nations to withstand a fascist assault by the head of the federal government precisely because it has divided the power of government between Washington D.C. and the 50 states. Our Constitution specifies in the Tenth Amendment that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That is a general statement of the limits of federal power, but it has some real consequences for dangerous federal overreach.

We saw this in California when Gov. Gavin Newsom sued the federal government over its troop deployment, claiming that the military was conducting local law enforcement in violation of the Posse Comitatus Act, which imposes criminal penalties on anyone who causes the military to act like a local law enforcement “posse.” The trial in that case recently concluded and we are awaiting a ruling, but Judge Breyer did not seem convinced that the military had limited its activity to federal purposes.

As discussed above, the Trump regime would be on far shakier legal footing should it proceed with its plans to deploy the National Guard, drawn from several red states, into blue enclaves. “Crime prevention” is not a legally recognized exception to the Posse Comitatus Act, and there is no active rebellion or insurrection for Trump to cite as a pretext for deployment.

Governor JB Pritzker gave a powerful speech rejecting the White House plan for troops on the streets of Chicago. In it, he spoke directly to the governors of red states who had agreed to deploy their state guards in service of Trump’s aggression and warned members of the Trump administration about being complicit in the scheme:

To my fellow governors across the nation who would consider pulling your National Guards from their duties at home to come into my state against the wishes of its elected representatives and its people, you would be failing your constituents and your country. Cooperation and coordination between our states is vital to the fabric of our nation and it benefits us all. Any action undercutting that and violating the sacred sovereignty of our state to cater to the ego of a dictator will be responded to.

The State of Illinois is ready to stand against this military deployment with every peaceful tool we have. We will see the Trump administration in court. We will use every lever at our disposal to protect the people of Illinois and their rights.

Finally, to the Trump administration officials who are complicit in this scheme, to the public servants who have forsaken their oath to the Constitution to serve the petty whims of an arrogant little man, to any federal official who would come to Chicago and try to incite my people into violence as a pretext for something darker and more dangerous: we are watching and we are taking names.

His entire speech is worth watching for the stand up and cheer value of it alone:

Other states are also standing up to the Trump regime’s various incursions. Recently, the Department of Justice demanded voter files from 20 states as part of its attack upon our election systems. But several states balked at the outrageous request and refused to comply. As Stateline reported,

Minnesota, New Hampshire and Wisconsin have so far declined to provide full voter registration lists to the department amid questions over the legality of the requests and uncertainty over how the information will be used. Maine Democratic Secretary of State Shenna Bellows plans to deny a similar request, telling the Maine Morning Star that federal officials can “go jump in the Gulf of Maine.”

Maine, in particular, has drawn the ire of the Trump White House after its governor Janet Mills refused to back down over its inclusive policies for trans athletes. The governor, in fact, told Trump to his face that she would follow state law and see him in court. Irked, Trump ordered punitive measures be taken, including the loss of federal education funding for her state.

But Trump chickened out. The USDA had gone along with Trump’s threat by freezing Maine’s funding for child nutrition. Maine sued the agency in court, and the parties reached a settlement in May, with the agency agreeing to keep the funding going after all.

“It’s good to feel a victory like this,” the governor said at a press conference reported on by the Portland Press Herald. “I stood in the White House and when confronted by the president of the United States, I told him I’d see him in court. Well, we did see him in court, and we won.”

In short, for Trump to impose his dictatorial ambitions upon the entire country, he will have to go through state governors like Newsom, Pritzker and Mills, none of whom are interested in caving. If Trump raises the stakes and tries to move in troops, things will quickly come to a head, but Trump will likely lose in court and be forced to retreat, just as he has done in California, where the U.S. military’s presence was little more than an expensive show, much like his laughable parade for the Army’s 250th birthday celebration.

Even the federal agents and National Guard in D.C. are looking rather foolish lately, occupied as they are by sandwich throwers and, as of yesterday, garbage collection around the capital.

The civil service

As the self-proclaimed “unitary executive,” at whose pleasure all employees of the government are supposed to serve, at least in his mind, Trump has sought to control the Executive Branch from top to bottom. And he has demanded unquestioning fealty from every official, even while demanding they bend or break the rules, especially around the politicization of their authority.

To this end, his lackeys, especially Attorney General Pam Bondi, FBI Director Kash Patel, Defense Secretary Pete Hegseth, HHS Secretary Robert F. Kennedy, Jr, and Director of National Intelligence Tulsi Gabbard, have been busily firing anyone who doesn’t toe the MAGA line or who practices any sort of professional, ethical behavior.

This has created a crisis of morale within every corner of the federal government and prompted several high-profile public resignations, including three from top officials at the Centers for Disease Control yesterday. Talented workers have been departing in droves, leaving many parts of the government paralyzed from staff shortages.

There have also been a high number of whistleblower complaints exposing and highlighting the dysfunction, lack of ethics, and even criminal behavior of officials in these agencies. Meanwhile, departments such as the Pentagon are overrun with leaks to the press, causing leaders like Hegseth to embark upon agency-wide investigations and even to fire his closest advisors in a raw moment of paranoia.

All this has created a federal government dangerously unready for international crises, national disasters, or another pandemic. By moving too fast and breaking too many things, the regime has endangered the entire U.S. public. For example, the chief data officer of the Social Security Administration alleged this week in a whistleblower complaint that members of DOGE had uploaded hundreds of millions of Americans’ Social Security numbers, birthdates, and other personal identification information to a vulnerable cloud storage system, breaking several privacy and security laws and putting all the data at risk of being leaked or hacked.

In short, the shocking incompetence and inexperience of the President’s cabinet is now compounded by an utter lack of effective administration throughout the government. While this is very bad news for our nation, it has also significantly weakened the regime’s ability to control the U.S. population through a kind of permanent police state.

Big projects, such as the regime’s much-touted “Alligator Alcatraz,” have come to humiliating ends. Reports of shoddy construction, lack of basic supplies, and a failure to follow any environmental regulations called a halt to that facility’s operations. Indeed, just yesterday, after a federal judge ordered the center to stop accepting new detainees and to dismantle large parts of its facility, internal communications indicated that it would be shut down with detainees no longer housed there within the coming days.

Morale has even plummeted at the very center of Trump’s private police force, ICE. Reuters reported just this week that the agency’s crackdown on non-criminal immigrants has rattled long-serving ICE officers who did not join up to inflict senseless cruelty and fulfill unrealistic quota numbers from Stephen Miller. As Reuters noted,

In some cases, officers on raids have gone to wrong addresses following leads that relied on artificial intelligence, increasing the chances of picking up the wrong person or putting an officer in danger, according to one current and two former officials.

“The demands they placed on us were unrealistic. It was not done in a safe manner or the manner to make us most successful,” the current official said.

During recent raids in several U.S. cities, masked ICE agents have been confronted by angry residents demanding they identify themselves and chasing them out of neighborhoods.

And that leads us to a fourth critical constraint, one that is growing with each new horror inflicted by the Trump regime.

The People

Many of us are familiar with the massive shows of opposition organized by groups such as Fifty Fifty-One and No Kings, where millions of citizens have turned out in streets and squares in thousands of locations across every state to oppose Trump’s fascism. More such protests are planned, and they are likely to grow in size and intensity, especially if Trump escalates his troop deployments.

We’re also now familiar with scenes of citizens bravely standing up to Trump’s thugs. Across social media, and as reported on by local news, ordinary people are confronting ICE, demanding to see warrants, filming their abuses, and shaming them for hiding their identities with facial coverings. Rather than cower in fear from the SS-like behavior of ICE, the public is accosting, recording and holding federal agents accountable. We are building an ethos of resistance to counter the MAGA ethos of fascism.

There is also a surprising development we are now seeing spring up in courtrooms in our occupied urban centers. In Los Angeles, grand juries reportedly have been refusing to indict protestors arrested during the ICE protests. That in itself is an incredibly rare thing; grand juries almost always return true bills of indictment in cases brought by law enforcement, given that the standard is simply “probable cause” that a crime has been committed.

But as The New Republic reported in July,

[O]ut of the 38 felony cases filed by Trump-appointed U.S. Attorney Bill Essayli, only seven have resulted in indictments.

In a recent case, the grand jury refused to indict a protester accused of attacking federal law enforcement officials. And Trump’s prosecutor was not happy: The Times described “screaming” that was “audible” from outside the grand jury room coming from Essayli.

If you’re doing the math, that’s a batting average of just 18 percent, when normally around 99 percent of cases brought before grand juries return an indictment.

Los Angeles isn’t the only place this is happening. In Washington D.C., a third grand jury recently refused to return a felony indictment against a woman who had allegedly assaulted an ICE officer during the detention of an immigrant in that city. Acting U.S. Attorney Jeanine Pirro—who I should note was also a Fox host—finally agreed to move forward with a lesser charge of misdemeanor assault.

Then there was the former Justice Department official who became internet famous for throwing his Subway sandwich at an ICE officer. Attorney General Pam Bondi responded by overreacting, siccing no fewer than 23 officers to arrest him in his home while filming the entire thing to rile up her MAGA audience.

The move appears to have backfired, however. A grand jury in D.C. has once again refused to return a bill for felony indictment against the defendant. As the New York Times noted,

The grand jury’s rejection of the felony charge was a remarkable failure by the U.S. attorney’s office in Washington and the second time in recent days that a majority of grand jurors refused to vote to indict a person accused of felony assault on a federal agent. It also amounted to a sharp rebuke by a panel of ordinary citizens against the prosecutors assigned to bring charges against people arrested after President Trump’s deployment of National Guard troops and federal agents to fight crime and patrol the city’s streets.

The Trump regime would do well to remember that, when Americans rejected their first king, a critical complaint was that the Crown had taken away the right to trial by jury of one’s peers. That was because American juries routinely refused to convict American patriots of the crimes the Crown had accused them of.

Aside from the power of protest on the streets or from within the jury room, the people still hold the most powerful weapon of all in the form of their ballots. Trump knows that a day of reckoning is coming on November 3, 2026, when control of Congress will be decided. A Democratic majority in the House would open him and his cohorts up to all manner of investigations, hearings and even impeachments.

Trump has been open about his plan: to gerrymander red state maps even more extremely by cracking apart Democratic districts or by packing minority voters even more tightly than before. Blue states such as California are meeting the moment by threatening their own redistricting.

But in the GOP plans, there lies a risky assumption, namely that the electorate of 2026 will look a lot like it did in 2024. To achieve its state’s gerrymander, officials in Texas are weakening existing Republican held districts, enough so that in a Blue Wave year, their entire project could be swamped, with many red seats flipping blue. A massive and overwhelming popular response to the GOP’s efforts to cheat would be karmic justice at its absolute finest.

The people still have it within their power to do this. And the American electorate remains the ultimate backstop to the threat of Trump’s fascist takeover.

In highlighting the important constraints that still exist upon Trump’s power, I do not mean to diminish the danger we are all very much in. The power of the federal government is awesome, and in the wrong hands it is terrifying. When turned upon a single institution or individual, it is not easily withstood, as we have seen repeatedly in these past months.

But the federal power Trump wields is not limitless. Standing in opposition are the combined power of the law and our courts, our blue state governors and the resources they control, the brave actions and resistance of our civil servants, and the growing anger of the people to his appalling overreach and the sick cruelty of his regime.

This fight is far from over. Rather, given all of the above, it’s fair to conclude that it has barely begun. As we press on, we should never lose sight of the fact that Trump is beatable, that Trump is weaker than he imagines, and that Trump Always Chickens Out in the end.

If we hold true to these beliefs and do not falter in our own courage, we can honor the hopes and the struggles of our founders, and we can still manage to keep this republic for our children and for theirs to come.