During a 90-minute lecture at Cal State Fullerton’s Mackay Auditorium on Tuesday, July 8, constitutional scholar Erwin Chemerinsky delivered a thorough analysis of recent actions by the Republican majority on the US Supreme Court (SCOTUS) that he characterized as posing significant threats to the Constitution. He concluded by suggesting that public engagement remains a potential avenue to address this situation, though his argument for its effectiveness was not fully persuasive.  His diagnosis of the constitutional emergency was both compelling and disturbing.  His prescription for curing the crisis seemed wistful, not quite up to the crisis he portrayed.

Chemerinsky began by noting the abysmal public approval ratings for all three branches of government.  He then outlined significant Supreme Court actions that have taken place since last January 20, highlighting how these decisions by the SCOTUS majority reflect increased deference to executive authority.  Despite the unparalleled constitutional crisis resulting from the capitulation of the Roberts Court to executive authority, Chemerinsky still believes that an engaged citizenry can rescue our constitutional democracy by staying informed, being involved, and engaging the public.  His cautiously optimistic perspective regarding the future of our democracy stands in contrast to both the evidence he presented during the lecture and the more pessimistic outlook he expressed in an interview with The Guardian journalists last September.

Chemerinsky is one of the top constitutional scholars in the US.  In 2017, the UC Berkeley School of Law appointed him as its 13^th Dean, after he had served a decade as the inaugural Dean of the UC Irvine law school.  The legacy of his students, hires, affiliations, publications, and arguments before the Supreme Court have few parallels and he is considered one of the most influential constitutional scholars in the nation.  He was responsible for hiring such luminaries as Katie Porter, Dave Min, and Michele Goodwin.  His speech to the CSU Fullerton audience illustrated the power of a great legal mind capable of presenting an array of complex legal ideas in a clear and coherent manner to a general audience. 

***********

***THE CRISIS***

Chemerinsky unsurprisingly began his lecture by expressing his existential fear for the future of American democracy.  His most recent book, after all, is titled: No Democracy Lasts Forever:  How the Constitution Threatens the United States.  Chemerinsky is a realist about the origins of our constitutional republic, recognizing that much of the constitution was designed to protect slavery and that its anti-democratic elements arose from compromises between ideals and interests.  In an interview with The Guardian, he expressed concern about the future of democracy in the United States without significant reforms, stating: “Our government is broken and our democracy is at grave risk, but I don’t see any easy solutions.”  He was somewhat more optimistic in Fullerton.

The radical solutions he has contemplated in earlier writings contrast with the rather traditional fixes he advanced in Fullerton.  Previously, he proposed considering a new constitution to replace the current one, noting that the present constitution does not contain provisions for ratifying a new document.  He has also considered the possibility of progressive states seceding, even though the constitution makes no provision for states to leave the federal government.  Chemerinsky has been nothing other than grave in his assessments of the current crisis. 

Unprecedented Times

Chemerinsky repeatedly used the term unprecedented to describe the unconstitutional actions that have taken place since January 20 of this year.  The level of public disfavor toward the government is unprecedented, with only 16% approving of Congress and 61% disapproving of the Supreme Court.  Most concerning, of course, is the unprecedented partisanship of the Supreme Court majority and its persistent deference to executive branch power.  The current 6-3 majority of Republican-appointed justices on the Supreme Court has made several decisions affecting the constitutional principles of separation of powers and checks and balances. There have been numerous cases in which the Supreme Court has ruled in ways that expand executive authority relative to judicial and legislative powers, making it challenging to identify a single predominant example. 

Trump v. CASA

The June 27, 2025 decision in Trump v. CASA exemplifies the Supreme Court’s strong deference to executive authority and its departure from established precedent and statutory language, as well as a shift away from the foundational principle of legal equality.  The case arose from Executive Order 14160, an initiative by the Trump Administration addressing established practices under the 14th Amendment regarding the conferral of citizenship to individuals born on United States soil, irrespective of their parents’ legal status.  While the Supreme Court did not make a determination regarding the Constitutional validity of the Executive Order, it limited the authority of district courts to issue nationwide preliminary injunctions.

This impacts the judicial process related to the legal framework for citizenship established in the very first sentence of the 14th Amendment.  This decision not only throws the clear text of the 14^th Amendment into confusion, it centralizes authority in Washington, D.C. thereby enhancing the power of the Supreme Court and, especially, the President.

The Supreme Court Republican majority has made the virtually absolute guarantee of 14^th Amendment birthright citizenship into a matter to be decided by the prerogative of whatever court gets the case.  Two cases with identical claims can be adjudicated differently depending on the particular judge involved.  This chaos could theoretically play out in every one of the 94 district courts in the US.  This is an open invitation for litigation by politically ambitious attorneys looking to build their careers on the backs of the most vulnerable among us.  This is Orwellian. 

The perversity of the CASA decision is not limited to its erosion of the clear provisions of the 14^th Amendment.  The president now can challenge any law without fearing that a national injunction would be issued against that challenge should it fail in the district courts.  Let the litigation games begin! Let us fill our courts with redundant cases that will result in infinite lawsuits and intentional waste and confusion.  The CASA decision places a massively destructive tool in the hands of the executive.  In her dissent, Justice Ketanji Brown Jackson captures the gravity of this decision in the broader context of deference to the Presidency in her scathing dissent:   “Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”

The impact of CASA can be compared to that of the Dobbs decision in terms of introducing variability into essential matters. Access to health care and family planning for women now differs across the 50 states, similar to how an individual’s rights and privileges of citizenship may depend on the rulings of one of the 94 district courts in the United States.  The undermining of women’s rights in the Dobbs decision is encoded in a way not yet fully established in the birthright citizenship decision.  The default position of the Republican appointees on the Supreme Court is deference to executive authority whenever there is a shadow of doubt about the relevant law.  Or even when there is no doubt at all.

[There is an update on the CASA decision.  On Thursday, July 10, Judge Joseph N. Laplante of U.S. District Court for the District of New Hampshire has blocked the Trump administration from enforcing the executive order on birthright citizenship in response to a class action lawsuit filed by the ACLU.  The class action may provide a way to allow for a nationwide resolution of the legal mess created by the Republican Court majority.  Or, it may not.]

Department of Homeland Security v. D.V.D.

On April 18, 2025, the Supreme Court issued its decision in DHS v. D.V.D., affirming that the executive branch has discretionary authority in situations of legal ambiguity. The ruling permitted deportations of undocumented individuals to a third country, notwithstanding a preliminary injunction by the U.S. District Court for the District of Massachusetts, pending further judicial clarification.  In this case, the Supreme Court of the United States issued a stay on a preliminary injunction, thereby permitting the Department of Homeland Security to proceed with the removal of four undocumented individuals to South Sudan. 

According to the judicial principle, the urgency of executive action was considered more significant than concerns regarding the circumstances of the individuals being deported.  This appears to operate on the absurd jurisprudential notion of: “It’s better to ask for forgiveness than for permission.”  For the Republican appointees on the Supreme Court, damage to the hypothetical power of the executive takes priority over the very real threats to the safety and well-being of individuals.

The Partisan Assault on Executive Branch Agencies

The six Republican appointees on SCOTUS have realized the longstanding quest of the Federalist Society to establish a unitary executive.  In this legal theory, the President claims sole authority over the executive branch of government and has the power to control the personnel inside of those agencies.  Since all six Republican appointees on SCOTUS are members of the Federalist Society and adhere to its theory of the unitary executive, it follows that they would allow the President to hire and, more importantly, fire anyone working inside executive branch agencies who have not shown sufficient loyalty to the President.  It is this attitude toward executive authority that allowed Elon Musk to take his chain saw to agencies whose budgets had been appropriated by Congress in accordance with Article 1 of the Constitution. 

The massive firings in agencies such as the State Department, Health and Human Services, Social Security, the Veterans Administration, FEMA, NOAA, the Department of Education and every other executive branch agency has deprived the federal government of a highly trained workforce that embodies massive expertise and experience that will take at least a generation to recover.  Assuming that there is a recovery.  There is no better way for the billionaire libertarians and objectivists funding the Trump party to prove their argument that government is bad than to appoint such absurdities as RFK, Jr. and Linda McMahon.  This is Ayn Rand’s wet dream.

Perpetual Emergency!

The six Republican appointees on the Supreme Court are especially deferential to executive power in matters even remotely tied to national security.  As a result, the President has engaged a ceaseless campaign of fear against foreign governments and immigrants from those foreign countries.  Since January, the country has observed the presence of unidentified, heavily armed personnel in masks, operating unmarked vehicles and detaining individuals without warrants or adherence to due process.  Some detainees have been sent to foreign concentration camps, where credible stories of torture and abuse have emerged.   This abuse is premised on the lie that the United States has been invaded by hordes of gang members, drug dealers, child sex traffickers, and criminals from other countries. 

To justify this abuse of governmental authority, the Trump Administration has grossly exaggerated both the numbers of undocumented immigrants that came into the country during the Biden Administration and the number of crimes they have committed.  Heather Cox Richardson has recently debunked these lies, especially the “open border” myth.  Fear and ignorance fuel this perversion of the constitutional order.  Courageous and astute attorneys can challenge the abuses in courts, but the Republican SCOTUS will always endeavor to uphold executive authority on even the flimsiest of excuses.

In US History, mass deportations and incarcerations occurred only during the war of 1812 and both World Wars.  The Japanese internment during World War II will forever remain a stain on our nation’s history.  The Immigration and Customs Enforcement (ICE) raids on our Latino neighbors will further stain the fabric of our nation with blood and tears.  The only national emergency that exists in the country right now is the constitutional crisis emanating from the abuse of executive branch power with full complicity of the Republican majorities in Congress and the Republican appointees on the Supreme Court.

In the flood of constitutional abuse by Trump and his judicial and legislative cohorts, none presents a more deadly threat than the growing power of ICE.  While Chemerinsky only made passing reference to this challenge, it is necessary to identify the special role that ICE will play as the constitutional violations accelerate.  The $170 billion allocated to ICE in the so-called Big Beautiful Bill represents a massive increase in the scope and power of an executive agency that was only created after the establishment of its foundational agency, the Department of Homeland Security, soon after 9/11.

ICE, this heavily militarized domestic police force, will operate beyond the parameters and constraints of both the Federal Bureau of Investigation and the Armed Forces.  The annual $37.5 billion allocated to ICE makes it the largest law enforcement agency in the nation by far.  This budget exceeds the entire annual military budgets of Italy, Israel, Netherlands, Brazil, and Switzerland.  Because ICE is not part of the armed forces of the USA, it will not fall under the Posse Comitatus Act of 1878.  This Act prohibits the President from deploying the military within the United States unless expressly authorized by an Act of Congress or the Constitution.  The preposterous legal justification is as follows:  Because ICE is purportedly dealing with immigrants as part of a foreign invasion, it is exempted from following the due process provisions of the US Constitution.  ICE merges all the power and potential for abuse of both the US military and the FBI.  The parallels with Hitler’s Gestapo become increasingly apparent every day.

These were the general points made by Professor Chemerinsky.  By understandably confining his focus to what has occurred since January 20, elements that a broader framing of the current crisis would bring into view were missing.  It is no longer clear whether we even live in a constitutional republic.  People who do not foresee the real possibility or even likelihood of a Reichstag Fire prior to the 2026 midterms are just not paying attention.  Or, they do not know history.

The Constitution is Dead! 

Long Live the Constitution!

The source of the current crisis is inherent in flaws in the constitution itself, which is a subject that Chemerinsky knows as well as anyone.   Those who attended the Fullerton lecture hoping that he would build on the findings of No Democracy Lasts Forever:  How the Constitution Threatens the United States were perhaps disappointed.  His prescription for addressing the crisis was rather general. 

It is one thing to appreciate the energy of the opposition that the Trump agenda has elicited.  That energy, however, needs leaders to focus and direct it so that it does not dissipate without achieving the essential tasks at hand.  The Trump regime is fighting a war of attrition that it is winning as the rudiments of our republic fall under the control of a plutocratic elite colluding with a massive network of judges, politicians, pulpiteers, and pundits.  Chemerinsky compellingly explains the problem.  We now need him to lead us toward solutions.

The full-page ad he created in bi-partisan collaboration with several other legal scholars, activists, celebrities, and elected officials provides a useful framework for defining the task, but groups like this need to provide a specific plan of action that will ensure that the core truths of our republic survive the current onslaught.  More information about this movement can be found at weholdtruths.org,  and here is the link for the full page ad that was published in select national newspapers.

What follows are some responses to Chemerinsky’s presentation, with some layman’s suggestions. 

We Are No Longer A Nation of Law.

Using the strategy of “flooding the zone,” the Republican Party has succeeded in overwhelming the ability of the deliberative institutions of the administrative state to respond.  These political arsonists are creating myriad five alarm fires in various governmental realms. They then mock those of us committed to upholding the constitutional order when we try to challenge them.

When Donald Trump won the 2024 election by over 2 million votes, it retroactively destroyed the considerable achievements of the Biden Administration.  The November reelection allowed Trump to complete the assault on our constitutional republic that he set out to achieve on January 6, 2021.  Today we face the very real prospects of a single party dictatorship organized around the personality of a single individual.  The unprecedented constitutional crisis we face today will require unprecedented courage and imagination on the part of leaders committed to a democratic future.

Here are the central facts that should always remain the focus of everyone invested in ensuring that we emerge from this crisis as a constitutional republic.

• On January 21, 2010, the six Republicans on the SCOTUS ruled in Citizens United v. Federal Election Commission that campaign expenditures were forms of Constitutionally protected free speech that could not be limited in campaigns.  This decision vastly expanded the role of money in political campaigns and opened the floodgates to dark money donations from dubious sources, foreign and domestic.  Elon Musk donated $288 million to the Trump campaign directly and funded other campaigns and institutions that benefited Trump less directly.  But this was only part of the plutocratic takeover.  The estimated combined net worth of Trump’s current cabinet is $7 billion.  By contrast, the combined net worth of Biden’s cabinet was $118 million.  This is government of, by, and for the rich.  “We the billionaires. . . . “

• On January 6, 2021, Donald Trump organized a violent mob to overturn the results of a free and fair election.

• On July 1, 2024, the Republican appointees on the Supreme Court ruled in Trump v. United States that a President has absolute immunity for actions taken in relation to core constitutional powers and presumptive immunity for other official actions.  This decision effectively placed the President above the law and ensured that there would never be a prosecution for the treasonous act that occurred on January 6, 2021.  This decision is the linchpin of the lawless dictatorship we now see emerging.

• On November 25, 2024, special counsel Jack Smith withdrew a 40-count felony indictment brought against Donald Trump by a grand jury on July 27, 2023.  Following Trump’s re-election, the special counsel dropped the indictment in accordance with a Department of Justice principle that prohibits the prosecution of a sitting president.  The case had been deliberately and baselessly postponed by Trump appointed federal judge Aileen Cannon.  This case marked the first federal indictment of a former president.  Special counsel Smith declared his intention to proceed against Trump’s co-conspirator, Walt Nauta, but the Department of Justice has since dropped the case and the stolen classified materials have been returned to Mar-A-Lago.  Trump had reportedly promised to pardon Nauta.  Trump will likely have four more years to further corrupt the federal judiciary with judges in the vein of Aileen Cannon.

• On January 17, 2025, President-elect Donald Trump released a meme coin called $TRUMP.  Two days later, his wife issued her meme coin, $MELANIA.  Over the past six months, reports indicate that the Trump family has garnered more than $3 billion through cryptocurrency ventures with World Liberty Financial, through real estate transactions involving sovereign entities and private individuals both within the United States and internationally, and through a range of licensing and royalty agreements.  The Trump regime has institutionalized bribery and made a mockery of the emoluments clause of the Constitution.  The six Republicans on the SCOTUS and all Congressional Republicans have tacitly endorsed this corruption.

• On January 20, 2025, President Trump issued a “full, complete and unconditional pardon” to everyone convicted of offenses committed at the Capitol on January 6, 2021.  This previously unimaginable abuse of Presidential pardon power included 14 members of violent extremist groups who had been convicted of seditious conspiracy.  Violent extremists can rest assured that they will never be held to account if the crimes they commit in support of the president are prosecuted in federal courts.

• On April 25, 2025, FBI agents arrested Milwaukee County Circuit Court Judge Hannah Dugan and charged her with helping undocumented immigrants evade arrest.  Judge Dugan was rightfully concerned with the due process rights of the undocumented.

• On May 9, 2025, Ras Baraka, the Black mayor of Newark, New Jersey, was arrested on charges of trespassing outside the Delaney Hall federal immigration detention center in Newark. The charges were later dropped.  The mafia-like message to local Black officials, however, was clear.

• On June 10, 2025, a federal grand jury indicted Black Congressmember LaMonica McIver for “forcibly impeding and interfering” with federal officials at the Delaney Hall detention center.  McIver has the right and responsibility to oversee the operation of the facility.  This case is pending.  Government by intimidation persists.

• On June 12, 2025, federal agents physically assaulted a Latino Senator, Alex Padilla from California when he tried to respond to an outrageous claim by DHS Secretary Kristi Noem.  The DHS Secretary had claimed to have come to California to “rescue” Los Angeles from its elected mayor and California from its elected governor.  The historic parallels for this are Hitler’s assault on Prussia and its capitol, Berlin.  Prussia, like California, was the most prosperous, culturally dynamic, and democratic regions in Germany during the Weimar era.  Hitler’s effort to subordinate Prussia was part of a program known as Gleichschaltung.

• On June 14, 2025, a Christian terrorist assassinated Minnesota State Representative Melissa Hortman.  The terrorist had associated with the New Apostolic Reformation and the “Seven Mountains Mandate,” which are elements within large sects of the evangelical Christian community that are opposed to freedom of thought, belief, and speech in the United States.  This Christian terrorist had a list of 45 Democratic politicians targeted for assassination.  Utah Senator Mike Lee nevertheless blamed Democratic Minnesota Governor Tim Walz and “Marxists” for the shootings. Many Democrats do not want this case prosecuted in federal courts because of a concern that the assassin might be pardoned by President Trump.

• On June 21, 2025 President Trump ordered the use of 14 GBU-57 Massive Ordnance Penetrator bombs against several Iranian targets.  The president neither received Congressional authorization nor informed Congress of this act in advance.  The emergency used to justify this act appears unfounded.  By all evidence, the Trump administration has exaggerated the effectiveness of the bombing.  To further place this incident into the realm of the absurd, President Trump thanked Iran for the advanced notice Tehran provided for its missile attack on a US Air Base in Qatar.  The deadly regimes in Moscow, Washington, Tehran, and Tel Aviv orchestrated this charade.  The president, nevertheless, has indicated that he does not believe he has to consult Congress prior to engaging acts that might begin a war.  This is the theory of the unitary executive in action.

• On June 27, 2025 the six Republican appointees on the SCOTUS imposed religious restrictions on state sanctioned curriculum in public schools in Mahmoud v. Taylor.  This ruling will create further chaos and impose the burden of endless potential litigation on the public school system from religious zealots of all types.  This specific case involved the depiction of LGBTQ individuals in elementary school curriculum.  Specifically, the censorship here involved depictions of gay marriage.  This case, however, relates to a broader and more concerning effort of the Supreme Court to allow taxpayer dollars to go to religious schools with curriculum and procedures over which taxpayers have no say.   Espinoza v. Montana Department of Revenue and Carson v. Makin are decisions that had earlier contributed to the erosion of the Establishment Clause.

This is not monarchy.  This is not autocracy.  This is tyranny.  The only question is whether the path out of this horror is along a peaceful and legal one, or whether our nation will be forced onto a trail of further violence perpetrated by neo-Nazis, death cult nihilists, and Christian apocalypticists.  

There is no path back to a pre-Trump legal order.  The nation needs the guidance of sober Constitutional scholars like Professor Chemerinsky more than ever.

 What Then Must We Do?

One can imagine a mass campaign driven by visionaries like Chemerinsky who could draw up several constitutional amendments that would address the most appalling of recent SCOTUS rulings as well as fixing inherent flaws in the original text of the Constitution.  There might be amendments overturning the Citizens United decision and reaffirming in explicit terms Roe v. Wade.  There could be a further push to confirm the Equal Rights Amendment and pass an amendment that would encode the Obergefell decision securing the right to gay marriage.  The nation might repeal the 2^nd Amendment and secure the right to bear arms in a way that would help the nation ensure that guns no longer remain the leading cause of death for children and teenagers.  Further constitutional amendments might address voter suppression and gerrymandering.  One could even imagine an amendment declaring health care a fundamental right.  This list could go on.  And on.  Which raises a question that Chemerinsky addresses in his writings.

Although, as Chemerinsky observes, the US Constitution does not contain a provision for its own abolishment, is it feasible for the country to enact a Constitutional amendment permitting a comprehensive revision of the Constitution?  Can we pass an amendment essentially abolishing the current constitution and prescribing a method for ratifying a new one?    There are myriad examples of how our constitution has become outdated and there are many countries in the world with more vibrant constitutional democracies than our own.  It is time we learned from them.

The current crisis has revealed the innate flaws in our Constitution.  The inherent inequalities deriving from The Great Compromise now stand in bold relief as one of the major causes of our current crisis.  For example, the population of California is over 68 times that of Wyoming, yet each state is represented by TWO SENATORS.  As a result of such compromises on the fundamental democratic principle that everyone’s voice should be equal, a majority of Senators representing about 1/3 of the total population of the country has imposed a Supreme Court on the nation that does not reflect the will of the majority.  While it may not ultimately be possible to ratify a new constitution fully adhering to the ideal of one person, one vote, we can surely write one that diminishes the ability of a well-funded minority to impose its political will on the rest of the nation.

The Constitution also contains no provisions for how a state might secede from the union; and an amendment providing for this that might draw enough support across the country for secession to occur.  The divide between Red and Blue States is large and growing.  The relationship between these states, moreover, has become an increasingly abusive one.  MAGA Republicans are draining wealth from Blue States into the Red States.  Time Magazine recently documented a $1 trillion transfer payment from Blue States to Red States over a five-year period prior to 2023, amounting to a $4,300 per capita subsidy to the Red States.  While Red States perceive Blue States as perverse venues of godless wokeness, Blue States see Red States as economically dependent entities hostile to both science and diversity.  This could be a no-fault divorce.

A scenario could be proposed in which an amendment is introduced that modifies Article IV Section 3 of the Constitution to allow a state to leave the union through a peaceful process.  Depending on which other states might follow California into this new era of American democracy, a new federation of states might arise.  If not, then rather than Canada becoming the 51^st state, as President Trump has suggested on numerous occasion, California might become the 11^th Canadian province.

Rewriting the Constitution or seceding from the Union might seem like extreme, impractical, and even absurd solutions to the current problems of our nation.  But such extreme, impractical, and absurd times may call for such solutions.

Professor Chemerinsky’s solutions to the problems he described seemed wistful.  He lauded the excellent work of attorneys and district courts, where Trump’s executive orders and policies failed in 94.3 percent of the cases.  The problem, though, is when those lower court decisions were challenged in the Supreme Court, Trump prevailed 93.7% of the time.  This problem will only get worse as Trump appointments to federal courts continue into the indefinite future.  We are on a slippery slope into a one-party dictatorship.

Professor Chemerinsky is a visionary who can guide us toward a more democratic future.  Those who aspire to keep the United States a constitutional republic stand at a crossroads.  There are those who feel the best path to the future is to cautiously await the collapse of the Trump regime as a result of its internal contradictions and the weakness of the foundation of lies upon which it rests.  There are others who see an opportunity to put the country on a new foundation with big and bold ideas.

One could argue that the public is ready for something big, new, and bold.  The cautiousness of the Harris-Walz campaign failed.  The public, especially young voters as witnessed in the New York mayoral elections, are looking for something daring and visionary. 

Our nation has fundamentally renewed itself twice over 250 years, and now may be the time for the third renewal.  The Civil War brought about the first.  The Great Depression, the second.  We need visionaries like Professor Chemerinsky to guide us to the third.