You didn't sign up for this. But it's here anyway
I have been reading a lot about fascism since Inauguration Day. It’s dreadful stuff, but it has been necessary. I agree with nonprofit commentators like Vu Le that it’s time to speak plainly, and it’s notable that even conservative commentators like David Brooks and extremely conservative judges like J. Harvie Wilkerson have reached the same conclusion. We face an attempt to reject the rule of law and create an authoritarian state. The emergency is upon us.
Just before 1 a.m. eastern this morning, the Court issued an order directing the Trump Administration to cease any deportations under the Alien Enemies Act until further action by the Court. It released this order while the issue was still pending in the appellate court and before that court had a chance to act. It also released the order without waiting for Samuel Alito, the Supreme Court justice responsible for supervising that appellate court, to act make a recommendation to the full Court. In other words, it intervened with what for this Court is lightning speed. I’m sure it has happened before, but despite being a serious student of the Supreme Court for more than 35 years, I cannot remember the Court ever acting so swiftly and without attention to judicial niceties.
This does not mean that the Court believes that the AEA deportations are illegal. It does, however, strongly suggest that the Court is deadly concerned that the Administration is acting in violation of the Court’s orders and cannot be trusted. Steve Vladek, a respected Supreme Court scholar, comes to the same conclusion in a must-read piece that suggests just how extraordinary this action is. You must subscribe (for free) to read Steve’s piece, but please do, because we all need to understand how dire the moment really is.
Justice Alito and Justice Thomas dissented from the unsigned order. That’s unsurprising, but it does mean that even most of the conservative justices (Roberts, Gorsuch, Kavanaugh, and Coney Barrett) are beginning to recognize that this is a full-on constitutional crisis.
In response to the Trump administration's authoritarian actions, leaders from major philanthropic organizations, including the MacArthur Foundation, are urging the sector to resist compliance and safeguard democratic principles. Over 300 organizations have joined a campaign to protect the sector's freedom to give and speak, emphasizing the importance of upholding constitutional rights like free expression.
I published a blog post on Thursday making the same pitch, but I now think I was not strident enough. Now is the time when nonprofits must stand up for bedrock notions about America that may have been left unstated in our mission statements. It never occurred to us that animal‑welfare organizations, dance companies, after-school programs, and other nonprofits would need to state that they see defending the Constitution as part of their duty as civic entities. I believe that this is because nobody ever thought it would come to this: a sitting President taking unprecedented authoritarian actions, and the majority party in both houses of Congress acquiescing or even encouraging this unlawful power grab.
Dance troupes, animal-welfare organizations, after-school programs, and indeed all 501(c)(3) organizations have a compelling interest in protecting and preserving the institutions that allow them to act safely under the rule of law. Nonprofits exist because a free society deliberately makes room for private initiative in the public square. Because their very operating space is a gift of liberal democratic institutions, nonprofits inherit a reciprocal obligation to protect and defend those institutions.
That duty is not partisan; it is constitutional, inherent in what makes us a nation. It means safeguarding the rule of law, standing up for free expression—even when the speech in question is unpopular—and calling out actions that corrode trust in neutral administration. When nonprofits educate stakeholders about the concrete ways public policy affects their missions, they translate abstract constitutional principles into lived community benefits.
It’s time to do that work.
Harvard University publicly rejected federal demands to eliminate DEI programs and accept political oversight, leading to the freezing of over $2 billion in grants and threats to its tax-exempt status. The university's stance is seen as a defense of academic freedom and constitutional rights.
President Trump has escalated scrutiny of civil society groups, including reviewing the tax-exempt status of advocacy organizations like Citizens for Responsibility and Ethics in Washington (CREW). These actions have raised concerns about the use of governmental power to punish political opponents and the potential threat to democratic accountability.
The Department of Government Efficiency (DOGE) attempted to assign a team to the nonprofit Vera Institute of Justice, which advocates for reduced incarceration rates and provides legal aid to undocumented immigrants. The attempt was withdrawn after DOGE learned that the Department of Justice had rescinded $5 million in federal grants to the organization. Let that sink in. The attempt was not rescinded because it was unacceptable; instead, DOGE backed down because it learned its pretext was false.
Let me end this update by quoting from a legal opinion earlier this week by J. Harvie Wilkerson, Chief Judge of the United States Court of Appeals for the Fourth Circuit. Wilkerson was once on George W. Bush’s short list to succeed William Rehnquist as Chief Justice of the Supreme Court. He’s a man of rock-solid conservative credentials. He issued the ruling in the case involving Kilmar Abrego Garcia, the man wrongly deported to a Salvadoran prison. (I wrote about this case last week.) The Trump Administration was asking the appellate court to intervene in and halt the trial court, which was attempting to enforce the Supreme Court’s order requiring the Administration to facilitate Abrego Garcia’s release. Chief Judge Wilkerson was furious:
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
He concluded with words that must stir action:
Now the branches [of government] come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.