Trump has promised to use presidential power to violate fundamental rights. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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Since Election Day, according to Forbes

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, stock prices of private prison companies have risen faster than the share price of Tesla. (A stun gun company’s stock has, too.)

Private prison companies, after all, are key to the incoming administration’s mass deportation drive. If Donald Trump and his aides go through with their plans to seize millions of people, they need to find somewhere to put them as they are processed. Hence the good times ahead for private prison companies, which will be enlisted to build detention facilities.

Immigration is a fraught topic. We are a nation of immigrants and also a nation of laws. Americans from across the political spectrum recognize that the immigration system has not been reformed in decades. More should be done to secure the border and address the overwhelmed asylum system. We don’t know how far Trump and his squad will go. It is far easier to tweet about deporting millions of people than to actually do it. Mass roundups — without consideration of the capacity of our legal system or the unique situation of each individual and family — would tear apart families, violate our ideals of due process and equal protection, and upend the economy. The indications are, though, that Trump’s campaign trail threat that it will be “a bloody story

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” should be taken both seriously and literally.

On Sunday, conservative activist Tom Fitton proclaimed on Truth Social that Trump “will declare a national emergency and will use military assets to reverse the Biden invasion through a mass deportation program.” At around 4 a.m., Trump replied, “TRUE!!!”

As I’ve described before, the Brennan Center’s experts have mapped out the ways that presidents can wield little-used laws to unlock astonishingly broad powers. But even these emergency powers, which have inadequate restrictions, must be subject to the rule of law.

The Posse Comitatus Act

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generally bars the use of the military on American soil. That is a core element of a liberal democracy. But other dusty and obscure laws provide exceptions to that rule. Over the past few months, we’ve explained those laws and the risks they pose.

Trump has threatened, for example, to use the Insurrection Act. (No, that’s not where he gets to stage another insurrection.) It is an amalgamation of laws that lets presidents use the military to help civilian authorities when they get overwhelmed by unrest. Although there are rare situations when this authority is necessary, the Insurrection Act has not been meaningfully updated in more than 150 years. As my colleague Joseph Nunn points out, the law is dangerously overbroad

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and ripe for abuse. It grants the president nearly limitless discretion to deploy federal troops domestically, and courts have been excessively deferential to the executive in the past. And the federal judiciary is increasingly obsequious to Trump and his followers.

Trump has even said that he will use the last remaining part of the Alien and Sedition Acts of 1798 — laws decried by Thomas Jefferson as reflecting a “reign of witches” — to treat immigrants as an invading army. The law has been used only three times, most recently to intern Japanese and other foreign nationals during World War II. Its use would be flatly illegal, since the statute allows its use only when the nation is at war with a sovereign government. (Though judges in the past have been reluctant to overrule the executive’s judgment, as my colleague Katherine Yon Ebright reports

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.)

Then there’s the National Emergencies Act, a 1976 law that gives presidents vast power with few guidelines about what constitutes an emergency. My colleague Liza Goitein has written and testified

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for years about how this law can be abused — for example, when President Biden wrongly tried to use it to cancel student debt. Staunch conservative Sen. Mike Lee of Utah has also called for change, noting that “this kind of lawmaking-by-proclamation runs directly counter to the vision of our Founders and undermines the safeguards protecting our freedom.”

Trump wielded the National Emergencies Act to steer funds to his half-hearted effort to build a border wall. Stephen Miller last year told the New York Times

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that this time around, the law will be used to redirect funds to build “‘vast holding facilities that would function as staging centers’ for immigrants as their cases progressed and they waited to be flown to other countries.”

All of these statutes give presidents too much power. All need to be repealed or reformed, as we have argued for years, working with conservatives and liberals to press for change. But all continue to be subject to the Constitution and the rule of law. We are now working with coalition partners to prepare legal challenges to abuses of these laws.

Judges in courtrooms across the nation will soon face a test. Will they use their power to enforce long-standing protections for individuals? Will they uphold the rule of law? Or will they bow to political pressure and allow the executive to expand its already ample power?

All this will unfold not in some distant future, but just weeks from now. The Brennan Center will do our part, using our years of expertise on these once-arcane topics to fight for the Constitution.





Direct Democracy Prevails

In recent years, voters in several states have successfully used ballot measures to enact policy changes on issues including abortion access and labor laws. In response, some state legislatures have pushed back, seeking to limit the power of direct democracy. This year, lawmakers in Arizona and North Dakota proposed measures that would have made it more difficult for future citizen initiatives to succeed. But voters in both states overwhelmingly rejected these proposals. “Voter education will continue to be key to preserving direct democracy against such efforts in future elections,” Alice Clapman writes. Read more

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The Long Story of Voter Suppression of Native Americans

Restrictive voting policies — such as strict ID requirements, limited polling places, and barriers to mail-in voting — harm all voters, but they disproportionately burden Native Americas, particularly those living on tribal lands. A new Brennan Center study finds that between 2012 and 2022, voter participation in federal elections was, on average, 11 percentage points lower for people on tribal lands than for those living off-reservation. This gap suggests that, even without policies explicitly targeting them, the de facto disenfranchisement of Native American voters persists. Read more

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SCOTUS Is a Global Oddity

With no limits on tenure, the average U.S. Supreme Court justice serves for 28 years — more than twice as long as their counterparts in other major democracies. A new analysis by political science professor Lisa Hilbink examines high court term lengths around the world, concluding that lifetime appointments don’t offer added benefits for judicial independence compared with fixed or age-limited terms, but they do have clear costs. Hilbink argues that looking at other countries’ examples indicates that term limits can be implemented “with little risk to judicial independence — and the potential to build a more balanced and legitimate Court.” Read more

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Defending Democracy in 2025

Donald Trump has made it clear that, starting on the first day of his new term, he’ll pursue a radical agenda — one that threatens to undermine constitutional rights, trample long-standing norms, and disrupt critical institutions such as the Justice Department and other federal agencies. Earlier this year, the Brennan Center conducted a series of tabletop exercises to assess how well our system might withstand these authoritarian proposals. The results were unsettling, but not without hope. “There are opportunities to sort of delay, deflect, diminish the damage, move to a different forum, and there are opportunities to enlist public support for the kind of country we have always been, which is not a country subject to a dictator,” Bart Gellman told the New Republic. Read more

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News

Maya Kornberg on how congressional committees work // GAVEL IN

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Lawrence Norden on AI’s role in the 2024 election // ATLANTIC

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Joseph Nunn on the potential politicization of the military // CHRISTIAN SCIENCE MONITOR

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Eliza Sweren-Becker on the myth of voter fraud // TALKING POINTS MEMO

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Katherine Yon Ebright on Trump’s mass deportation plans // CNN

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