The central question should be: What are the government’s legal authorities and limits? Instead, writes Andrew Napolitano, that question has become: What can the president get away with?
President Donald Trump departs the Supreme Court after attending oral arguments in the landmark birthright citizenship case on April 1. ( White House /Daniel Torok)
There is a point in the decline of republics when the problem is no longer that government breaks its own laws. Governments will always behave unlawfully. The deeper problem comes when the constitutional machinery designed to prevent those acts stops functioning — when spending becomes detached from arithmetic, presidential power becomes detached from law and Congress and the courts become detached from the Constitution.
That’s where America is today.
The fiscal warning could hardly be clearer. The government’s debt has now passed $40 trillion. The Congressional Budget Office projects a $1.9 trillion federal deficit for fiscal year 2026, with annual deficits rising to $3.1 trillion by 2036.
Worse, borrowing itself is becoming more expensive. Ten-year Treasury yields recently reached 4.6 percent and 30-year yields 5.2 percent, as investors demand greater compensation for lending money to Washington. The July 2026 deficit alone reached $432 billion.
The uniparty government in the past 110 years has produced a vicious circle: It spends more than it collects, borrows the difference, pays interest on the borrowing and borrows still more to pay the interest. Eventually, arithmetic becomes destiny.
But fiscal insolvency is only half the story.
Without Due Process
President Trump, C.I.A. Director Ratcliffe, Secretary of State Rubio and Deputy Chief of Staff Stephen Miller monitor U.S. military operations in Venezuela in January. (Official White House Photo by Molly Riley)
What is more frightening is the simultaneous deterioration of constitutional norms.
The president increasingly acts as though his personality is the source of his legal authority.
The United States has gone to war without the congressional authorization that the Constitution was designed to require. And the U.S. has attacked speedboats in the Caribbean and eastern Pacific, with more than 220 people murdered and no legal basis for killing and dispensing with due process.
In January, the United States military killed 47 persons in Venezuela during its violent kidnapping of President Nicolás Maduro and his wife. Whatever one’s opinion of Maduro, the fundamental question remains: By what constitutional authority does an American president decide that a foreign head of state may be violently seized by the United States? None.
This is not a defense of Maduro. It is a defense of the principle that American presidents do not possess a roving commission to decide whom the United States may depose, kidnap or kill.
The distinction matters because constitutional government is supposed to stand between political power and its targets. The president is supposed to enforce the law, not create it. Congress is supposed to write the laws, not ignore them. The courts are supposed to enforce the Constitution, not evade it.
Yet Congress increasingly behaves as though presidential power is someone else’s problem.
Members of Congress complain loudly when the other party occupies the White House and become remarkably accommodating when their own party holds it. The result is an informal bipartisan transfer of power from the legislative to the executive. Every president inherits the precedents accumulated by his predecessor and then adds a few of his own. The next president inherits those precedents and stretches them further.
Eventually, there are no meaningful limits.
Courts Intervene Too Late
The same disease infects the courts. Judicial review remains theoretically formidable, but judicial intervention often comes after the government has already exercised power unconstitutionally. A constitutional right that can be violated first and litigated later is a fragile right. The person who has been silenced, imprisoned, deported, injured or killed cannot be restored to his previous condition merely because a court eventually announces that the government acted unlawfully and awards damages. Nor can a half-built, never-congressionally-authorized, $1 billion ballroom for billionaires be feasibly demolished.
The central question should be: What are the government’s legal authorities and what are their limits?
Instead that question has become: What can the president get away with?
“We the people of the United States…do ordain and establish this Constitution for the United States of America.” (Steven Nichols, Flickr, CC BY-NC-SA 2.0)
A free people should not have to depend upon the temperament of the person occupying the Oval Office. The Constitution was designed precisely because the founders understood that limited government cannot depend upon a few good people. They assumed that presidents would sometimes be venal and unscrupulous, Congress sometimes pliant and cowardly, and judges sometimes wrong. So they constructed competing institutions, with divided authorities and checks and balances, making governing difficult.
That difficulty was intentional.
A government that can spend without limit, wage war without Congress, kill without trial, kidnap without consequence and employ overwhelming force without due process is a government behaving outside the Constitution.
And the financial numbers make the constitutional deterioration even more ominous. A government approaching $40 trillion in debt cannot endlessly promise every constituency that someone else will pay.
This is how great powers decline — not necessarily with a dramatic explosion, but through accumulated exemptions, exceptions and evasions.
The president says the Constitution permits whatever he wants to do because the national security demands it. Congress permits the president to do what he wants because confronting him is politically inconvenient. The courts intervene only after it is too late to undo the damage and strain at a gnat to avoid hard decisions. The Treasury borrows another trillion dollars because balancing the books would be a nightmare.
The public becomes accustomed to extraordinary government power because yesterday’s outrage becomes today’s precedent.
Then, one morning, people wake up and discover that the constitutional republic they inherited exists mostly on paper.
But the night before this realization — at twilight’s last gleaming — the nation that once possessed protections for personal freedoms, opportunities for wealth, and a unique cultural environment sees its former fidelity to the first principles that made those things possible slipping away.
A republic survives only when the passionate among us light brushfires of freedom by insisting that the U.S. stays out of other countries’ business, presidents obey the law, Congresses exercise constitutional powers, courts enforce constitutional limits, war is a last resort, and governments acknowledge that borrowed money is not free money.
The alternative is gradual normalization of unlimited debt, unlimited executive discretion and unlimited rationalizations.
The twilight of our constitutional republic has not arrived because the sun suddenly disappeared. It has arrived because, little by little, nearly everyone became accustomed to the darkness.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2026 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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Thank you, Judge Napolitano for a definitive explanation on the illegalities, criminalities, and gross violations of Constitutional Law which has been going on by presidents, Congress, and various Departments in the federal government for far too long, and now, with a successful con-artist in the White House, we are witnessing and participating in, the Decline of Imperial America and our “empire” which has bankrupted our nation and caused a lot of death, destruction, misery and suffering around the world.
I highly recommend reading the Dr. Jack Rasmus book, ‘The Scourge of Neoliberalism’ From Reagan To Trump on all the tax cuts for the super-rich and corporations and the insane budgets for the military war machine and the systematic dismantling of hard-won social benefits for We the People.
And I think it will be published in September, by Clarity Press, the Professor’s new book, ‘Twilight of the American Empire’ which should be a page turner. (jackrasmus.com) His radio broadcasts on Alternative Visions are worth listening to.
It looks like the “checks and balances” between the Executive, Judicial and Legislative branches of government which I learned in Social Studies class in the 1950’s has deteriorated as Judge Nap eloquently stated is the real and present danger for the American people and the world. But empires come and go. Unfortunately, they do a lot of damage before collapsing from within, as most do, or conquered from without.
Some here might be interested in the novel “Twilight’s Last Gleaming” by John Michael Greer, a speculative geopolitical thriller driven by the the issues APN has discussed and informed by Mr Greer’s profound knowledge of history.
“Give it Up” for Judge Napolitano. Itsa “wrap!” i.e., “The rituals of democracy become farce.” …..IMO, the Judge’s “Twilight’s Last Gleaming” rocks “One Heart. One Love,” i.e., Chris Hedges, Ralph Nader, John & Nisha Whitehead, CN + “M a n y More.” Concluding, “life is like a turning shadow,” accepting the dark moments to appreciate the light.
2026: “The president says the Constitution permits whatever he wants to do because the national security demands it” i.e., “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters,” DJ “Hello, Iowa-2016 Campaign” Trump.
“Congress permits the president to do what he wants because confronting him is politically inconvenient” i.e., *“Barnyard thug, head full of straw. He calls it a rug. Itsa a rug, okay. He’s walking down the street and nobody wants to argue with him, he’s a half-a-ton of pig ment.”
2026, “Courts Intervene Too Late”… “This is how great powers decline — not necessarily with a dramatic explosion, but through accumulated exemptions, exceptions and evasions.”
…*“For Thine is the [ICEY] Kingdom. For Thine is Life is For Thine is the…This is the way the world ends. This is the way the world ends. This is the way the world ends. Not with a bang; but, a whimper.”
2026, “The Treasury borrows another trillion dollars because balancing the books would be a nightmare.” $pot f/On! Judge Napolitano!!! The Treasury, the bankers, the butchers, the thieves, oughta “$pend according to what’s in the kitty; NOT what they expect to have.” IMO, “Operation Hairball!”
2026, “The public becomes accustomed to extraordinary government power because yesterday’s outrage becomes today’s precedent” i.e., *”FASCISM is here! This is NOT a Drilll.”
“Then, one morning, people wake up and discover that the constitutional republic they inherited exists mostly on paper.” Concluding, “Yesterday’s, history. Tomorrow’s a mystery. Today’s a gift, that’s why it’s called the present.” Hence, *“Many people” ‘believe that we are waking up from the spell that those that profit from the fear, cast so well; And, good people of the earth, Now can tell, there is no us and them.”
2026, “The twilight of our constitutional republic has not arrived because the sun suddenly disappeared. It has arrived because, little by little, nearly everyone became accustomed to the darkness.” Judge Napolitano.
AND, “Between the idea & the reality. Between the motion & the act, Falls the Shadow.” T. S. Eliot, 1888-1965, *The Hollow Men”
.. “Above the cloud with its shadow is the star with its light. Above all things reverence thyself.” Pythagoras.
“Stay Wild!” TY!!!
* “Pigs. Sheep. Wolves.” Paul Simon
* “FASCISM is Here. This is not a Drill.” Chris Hedges/Roger Waters
* “What Happens Tomorrow” Melissa Etherridge
…p.s.,*”We do our best. We stay in step, as time goes marching by; but, there’s something wrong, we don’t start living; until, we almost die.” Melissa Etheridge, The Universe, Listened.
… “A mother was grieving her loss. Her soldier, the ultimate cost. She went to the man. Who’s been told that he’s a king. Waited outside of his compound. To ask him a few things. She said, “For what noble cause did my son have to die. Where are their weapons? And, Why did you have to lie?” Imagine that!
… “A lieutenant in the army. In his heart and his soul he believes, in the land of the free; And, the home of the brave. Now he’s standing on trial for he will not behave, as they wish. He said, “I believe the constitution. To defend it and uphold. I will not fight your war for profit. No, Sir, I will not go.” Imagine that!!
…”A scientist and his machine. The smallest of life he has seen. Inside matter, inside atoms. As far as you can go. He saw the strings of life that vibrate with the universal flow. He said, “I have seen the spirit and all its creation. It’s in each and every thought and all our intentions.” Imagine that! I M A G I N E that!!! i.e., “Civic Self-respect” Ralph Nader, 2025!!!”
……..“Truth is of the people, by the people, for the people;” Melissa Etheridge & The People,
“The Universe Listened/Imagine That/What Happens Tomorrow”
Remarkable comments, LeoSun.
“Grazie mille!” (TY, sooo much)!!!
…*“Sometimes, we can’t see anything straight. Sometimes, everybody is on the make. Sometimes, it’s lonely, on the lost highway. Sometimes, we cry. Sometimes we cry.”
This is one of those times. Hence, “All Hail,” the company “we” keep, that keep us in the know, from A-Z, i.e., singers/song writers, investigative journalists, the people, sing’n, loud & clear, “Fascism is Here! This is NOT a Drill.” No one is safe! Keep your head on a swivel!
TY, Bushrod Lake. Onward & Upwards!
*“Sometimes We Cry” Van Morrison/Tom Jones
Capitalism and constitutional government have always been at odds. We’ve been taught the opposite our entire lives. Capitalism won and constitutional government lost. That should be obvious by now. All capitalism had to do was buy off those put in charge of government. The Gilens and Paige study published in 2014 proved this scientifically. We are an oligarchy.
Kudos, you knocked the long festering U.S. politico-economic primary problem right on its head. The U.S. oligarchs, Zio-Con sponsored or not, have long thrived on the comforting knowledge that American society can be protractedly and securely abused by transforming the political elites into their toilet paper ; once handily abused they can be flushed down the loo along with the poo with no consequences whatsoever !
Well put.
As part of the Cold War we have been getting away with more lies and now we have the conviction that we can just rely on or special relationship with the western God that is saving us from the consequences of crucifying countries, their leaders, and populations at will accompanied with a prayer and a song.
Excellent article,needs to be widely discussed and debated.
Three powerful men in the top photo have their arms folded. Isn’t that the “Woah, Nelly Sign?
Haha! Think Cagney, Robinson and Bogey……
Although Judge Nap is a right-winger, he is correct in this article about the law and especially the Constitution. The U.S. empire is going down at an accelerating speed and the corporatists and their dirty money are fueling this decline. Things cannot continue as they have been going for much longer. The crash is coming and it won’t be pretty.
You are the Cicero of our age.
Bravo!
You’ve presented challenge.
Would that the Am.Public & its courts confront Congress’ fears and potus47’s perfidy.
Keep writing!
This has been going on a looooong time.
Clinton bombing other countries, with no war powers, to distract from his “Epstein” type problems,
Bush sending henchmen to force Ashcroft in his sickbed to sign off on unconstitutional surveillance, while finding lawyers to tell him that running offshore gulags was ok.
Obama running an undeclared global drone bombing war, killing 9 bystanders per target. For two terms.
This has been going on a long time. And no pushback. So here we are. And it will get worse still.