What prevents the President from abusing the military power at his disposal to stage a coup and actively impose presidential rule upon the United States? What if generations of presidential assertions of authority, congressional acquiescence, and judicial abdication have not only laid the groundwork for the President to use military power to impose his will, but in fact have legally sanctioned such a presidential coup? And what if the informal checks and balances that historically protected against such abuse—specifically a benevolent President, a constitutionally faithful military, intra-executive branch checks, and public opinion—have also eroded to no longer function as checks?
This Article explores these questions by arguing that the decay of formal and informal checks, buttressed by historical incrementalism, has created an environment ripe for a malevolent President to use the military power at his disposal to effectuate a presidential coup. Legal scholarship seldomly takes seriously the threat of a presidential coup. Such reluctance to engage seriously with a presidential coup has been understandable, as little historical evidence suggested a President was likely to turn the military power at his disposal against the American people. Nonetheless, the increasing use of the military by the Trump Administration to circumvent the constitutional design, followed by the use of the military to quell Black Lives Matter protests in Washington, D.C., and then culminating in the President’s reluctance and failure to use the military power at his disposal to defend the U.S. Capitol during the January 2021 insurrection suggest that such a threat of a presidential coup is ever-growing and becoming increasingly realistic. Legal scholarship needs to engage with the potential of a presidential coup with seriousness, examining its risk, the means to protect against it, and whether those means are functioning. This Article presents a novel framework that does just that.
Anthony J. Ghiotto,
The Presidential Coup,
Buff. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol70/iss1/8