If Trump wields the wrecking ball, the democratic damage may be irreversible

Donald Trump is returning to the White House – and the world is holding its breath.

No one doubts that Trump 2.0 means business, and it’s not business as usual. The real question is whether the second Trump administration will be defined by a form of constitutional and political “hardball”, or else a “wrecking ball” strategy.

Donald Trump has begun his second term. Credit: Dionne Gain

Constitutional hardball, Harvard Professor Mark Tushnet suggests, involves conduct that seeks to shift existing constitutional practices and is in tension with existing understandings as a result. But it is still within the general bounds of existing constitutional doctrine – even if many scholars disagree with its merits and legitimacy.

Think of Trump’s threat to buy Greenland, against the backdrop of hardball tactics such as a pharmaceutical tariff war with Denmark (designed to drive down the price of any land purchase).

Or think of Trump’s threat to retake the Panama Canal by force, most likely as a means of forcing Panama to offer the United States better shipping rates. Threats of this kind undermine Panama’s sovereignty and stability in the region. They are also deliberately designed to reshape understandings of how America uses force. But they are arguably within the bounds of past understandings of the scope of American military power.

A wrecking ball strategy, in contrast, is about disrupting existing practices – to destroy existing norms or institutions. Applied to politics, a wrecking ball strategy has the capacity to do deep and lasting damage.

Think of Trump’s promises to undermine the regulatory authority of the Environmental Protection Agency by appointing personnel to lead it who oppose its core functions. Actions of this kind could undermine air and water quality in the US for decades to come – and substantially worsen US carbon emissions in ways that have lasting global consequences.

Putting Robert F. Kennedy in charge of the federal department of health is a “wrecking ball” move.Credit: AP

Or take the proposed appointment of Robert F. Kennedy Jr as head of the federal department of health and human services. It is one thing to call for a review of vaccine or fluoride safety, but questioning the role of science and expertise in federal health policy effectively means destroying the whole idea of a federal department of health and human services.

But applied to constitutional norms, a wrecking ball strategy could be even more catastrophic: it could destroy norms and institutions essential to democracy and the rule of law, which are also extremely difficult to rebuild.

This is exactly what has happened in Hungary and Poland, as part of the rise of illiberal authoritarian governments over the past decade. Leaders such as Viktor Orban and Jaroslaw Kaczynski took a wrecking ball to formerly independent institutions such as courts and electoral and media oversight bodies. This also substantially undermined political rights and freedoms and the rule of law in both countries.

While Orban is still in power in Hungary, in Poland there is a new government seeking to rebuild these institutions. It is also finding that the process is a lot harder than it looks.

The rule of law generally means not interfering with appointment of judges and other independent officials. And yet, many of these officials are holdover appointments of the previous illiberal law and justice regime. It is therefore extremely difficult for the new government to restore the role of courts and independent institutions under their leadership. And the same could happen in the United States.

The federal judiciary is already extremely partisan and has little true independence from the political branches of government. In his first term, Trump also succeeded in appointing a conservative majority to the Supreme Court.

But if Trump goes further in capturing the federal courts, and appoints judges with no real commitment to the rule of law, things could certainly get worse.

Some of Trump’s cabinet nominees – such as Peter Hegseth, Elon Musk and Vivek Ramaswamy – could be viewed as advancing a hardball agenda to shift federal policy in defence and elsewhere. But they could also be viewed as having a constitutional wrecking ball quality.

There is a difference, for instance, between Hegseth advancing a less restrained view of US military power than in recent decades, and lacking the basic qualifications and respect necessary to maintain civilian control of the military – a core constitutional norm.

There is likewise a difference between Musk and Ramaswamy taking a radical approach to efficiency in government and destroying the independence of the federal civil service, which (like the Australian public service) has long been a bedrock of American democracy and the rule of law.

We should also worry if Trump follows through on campaign promises to attack the Justice Department and other independent institutions that are central to the rule of law in the US as part of a policy of retribution towards political opponents.

Of course, we should be downright alarmed if, in 2028, Trump is in a position to consider a third presidential run – and to cast aside the Constitution to do so.

All these changes would do large-scale damage to American constitutional democracy as we know it and send a clear message to would-be authoritarian actors around the world that they are free to do the same. They would also be extremely hard to reverse, even if Democrats were 100 per cent focused on the task after the midterms of 2026 or presidential election of 2028.

As we mark Trump’s return to the White House, it is therefore important to keep clear the difference between two things he may bring to the West Wing: hardball strategies we may not like and in fact actively disagree with, but will need to learn to live with, and wrecking ball strategies that we will need to find the courage resolutely to oppose.

Rosalind Dixon is a scientia professor of law and director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney.

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