Ideas - Can democracies survive the attacks on the rule of law?

Episode Date: October 30, 2025

Even in some of the world’s sturdiest democracies, leaders are deliberately undermining courts to weaken checks on their power. In many cases, the justice system is being sidelined. How much damage has already been done? And how worried should we be about the future of democracies around the world?We'd love to hear from you. Fill in our listener survey.

This program is brought to you in part by Spex Savers. Every day, your eyes go through a lot. Squinting at screens, driving into the bright sun, reading in dim light, even late-night drives. That's why regular eye exams are so important. At Spec Savers, every standard eye exam includes an advanced OCT 3D eye scan, technology that helps independent optometrists detect eye and health conditions at their earliest stages. Take care of your eyes. Book your eye exam at Specsavers today from just $99, including an OCT scan.

Book at specksavers.cavers.caps are provided by independent optometrists. Prices may vary by location. Visit specksavers.cavers.cai to learn more. This is a CBC podcast. Rule of law to me is essentially the ability of people and the government to keep each other in check. Well, I think just even beyond the United States, Donald Trump's second presidency has really demonstrated how fragile the rule of law is. People often say that when the United States sneezes, Canada catches a cold. So this is really concerning for Canada, and this raises questions about the sustainability of democracy itself in Canada as well as the states. Welcome to Ideas. I'm Nala Ayyad. The voices you just heard were students at Dalhousie University, talking about threats to the rule of law and the future of liberal democracies.

even in some of the world's sturdiest democracies. Leaders are undermining the courts to weaken or even dismantle checks on their powers, or they're weaponizing the judicial system to go after their political opponents. And the list goes on. Delhousie's fifth annual Stanfield Conversation examines these challenges and how to shore up the legal foundations of democracy. This public event was held in Halifax on October 21st, On stage, two legal scholars, one American and one Canadian.

Oshah Rangapa is a senior lecturer at Yale University's Jackson School of Global Affairs and a former associate dean at Yale Law School. Prior to her career in academia, she was an FBI agent, specializing in counterintelligence investigations. Wayne McKay is a professor emeritus of law at Dalhousie's Shulik School of Law. His expertise includes constitutional law and the Canadian Charter of Rights and Freedoms. Ideas producer Mary Link

moderated the event before a sold-out crowd. Welcome, welcome, everybody. Thank you for showing up. It gives me a great hope in humanity that so many people are coming to hear about the state of the rule of law and the threats to our democracy. So, Asha, how were you?

should we be? And I know that you're coming from Yale and the United States. How worried should Americans be? And conversely, how worried should Canadians and the rest of us in the world democracies in particular be? So you all should be worried. We're worried for sure. I think it's pretty clear that we are, we're in it. It's not the threat of authoritarianism. It's we are on the path. And what I would say is that I think people need to understand that it is a path, right? You don't, it doesn't happen overnight. It happens incrementally. And I think when you look globally, what you can do is essentially map different countries that are at different points along that path. And nine years ago, we were right at that precipice. At that time,

I was looking at countries like India and saying India is, you know, several steps ahead of us on this path that I can kind of see us on. I think we've more or less caught up, maybe even surpass that. There are other countries that are ahead of us, and then other countries that are in the rearview mirror that may catch up. So I would say that to think about it in that way and to think about where your own country is on that path. Wayne, are you worried? Are you looking pretty calm there? Are you worried as Canadian? I am worried. I guess I'm optimistic that our institutions will be hopefully better protection than some of the situations elsewhere in the world, but aware that nobody can be complacent.

I mean, I think it was attributed to Thomas Jefferson that the price of liberty is eternal vigilance, and I think you could say that in a way about democracy as well. So if you are complacent and not paying attention to what's happening elsewhere and think it can't happen here, you're likely to have an unpleasant surprise. And I think that's to some extent true in Canada. It is easy to say we're glad we live north of the 49th parallel and that we're not the 51st state, which some people don't seem to understand. But in any event, that's a cause for worry.

If Canada elected, an authoritarian-leaning figure, who had a majority, could he or she not help unravel the rule of law? Because what we're finding is a rule of law is very vulnerable, that if you have a good leader, it's okay. And for years, that was a norm. But if you don't have a leader who abides to that, we're pretty vulnerable, aren't we? We are.

I mean, I think most everyone is. I think it was Plato a long time ago made a point that if good people will act responsibly with or without laws, but if you have bad people, they will find ways to evade law. And we shouldn't take institutions or democracy or freedom for granted. Asha, in your country of the United States, the speed in which the rule of law has been eroded and at times ignored is kind of breathtaking. Is it breathtaking to you? Yes, I think this has happened. much faster than anyone anticipated.

And just to Wayne's point, I think we can get complacent when you look at the design of governments and say, well, it can't happen, right? And I mean, that's what we thought in the United States. We actually have some very careful design in the structure of our government and several intersecting bulwarks, if you will. We obviously have our separation of powers, which you have here in Canada. We have federalism, which is the tension between the federal government and the states with more power that is supposed to reside in the states. And we have this check on the military with civilian control of the military and war powers being distributed among Congress and the president.

All of these should be operating in a way that should prevent what's happening from unfolding. But one of the things you realize as things start to go south is that often, The operation of your government rests on norms and not formal rules or laws. And you don't realize that maybe for hundreds of years you've just been operating with everyone assuming and most people following through on everyone operating generally in good faith, or at least not willing to test the boundaries of what they can get away with. And I think what we are discovering is that perhaps in today's climate, norms are not enough.

No. And shoring up, when you have a deteriorate, norms work when there is trust. When trust breaks down, then you need more formal structures in order to keep people honest, if you will. I have to say, I'm kind of surprised that it was so heavily based on norms, that it relied on norms, that relied on when a court order happened, you did it. And that was that kind of, I don't know to say flimsy, but vulnerable. I'm surprised. And that we had so much faith in the norms, the morals of society, Wayne? Well, I think that is a good point.

And that our institutions, as Usher just said, however good they are, are not an absolute guarantee. But much of the way people operate is always by norms, and we assume people will follow those. but clearly that's not happening in lots of places, certainly not happening in the United States. And Canada has some of its own issues on that regard that things that have been traditionally expected are not happening.

And a lot of things have changed. So things that have worked in the past to protect us may not do it quite so well in the future. I'll show you were a FBI agent at one point. Norms are definitely changing for them. Yes. So the, you know, the FBI has obviously had ups and downs in its history for it's now, what, 117-year history that it's been there. One interesting thing that people don't realize about the FBI in states even is that it does not have a legislative charter.

It is not an agency that's created by Congress like the CIA or NSA or many other agencies. after the 1970s, after some congressional hearings known as the church hearings, where a lot of abuses under J. Edgar Hoover came to light, Congress thought about creating a legislative charter to cabin the FBI's powers, et cetera, have more oversight. But instead, what they decided to do was allow the attorney general to implement internal rules. And they're called the attorney general guidelines. There are a set of rules on how investigations can run, what you need to start them, et cetera, and they are enforced by the Attorney General. And the FBI itself is a creation, as I mentioned, of the Justice Department. So that's sort of an example of these norms, because

we have relied on the integrity of the Attorney General of the United States to be able to essentially police its own department. And people don't realize that, although we have due process protections, they don't kick in until you're formally charged and you are taken into court. And then, you know, you have certain protections. But there is a very long runway. I don't know how it works here in Canada, but there's a really long runway between when an investigation begins and when you're charged, if you ever are. And there are things that you can do as an FBI agent. You can follow people. You can go through their trash. You can interview their friends and their employers. You can get their phone records. You can get their financial records. So there's a lot that you can do

to create a vexatious situation for someone to intimidate them, to harass them. And so that's where we are, is that we are in a situation where someone who wants to weaponize that agency can do it. And if they want to do it, to go after enemies of someone in power, they're able to do that. I want to talk right now, Asha, about, specifically about the United States Supreme Court. And a guardian newspaper headline recently asked, quote, why does the Supreme Court keep bending the knee to Trump? And also, J. Michael Ludgick, he's a highly respected conservative, to former federal appellate judge and the state said, quote, the chief justice is presiding

over the end of the rule of law in America. That's a pretty strong statement. Would you agree with that statement and why? So I think that the immunity decision that was handed down, the spring of 2024, just fundamentally altered our constitutional structure. And eviscerated any idea that there are co-equal branches. It essentially aggrandized, depending on how you read it, it elevated the executive branch above the others, or it elevated the Supreme Court by allowing it to call the shots on when a president can have immunity or not, if you read the text of the opinion carefully. But either way, it definitely eviscerated this idea of checks and balances. I don't think that you can understand what the Supreme Court is doing without understanding the

view of executive power that the conservative justices have. And it's this idea called the unitary executive. The unitary executive is based on an interpretation of the Constitution of the United States, Article 2, which has a line, the first line that says, all executive power shall vest in the president of the United States of America. It's called the vestiture clause. Unitary executive adherence say that that means that literally what it means, that all executive power rests in the singular person of the president. And since the president cannot feasibly do everything, there is this branch of people that work in the executive branch who effectively are his mini-meas, and they are there to effectuate his will. What this means is that he can

hire and fire people at will. It's now also understood by this administration and by many people on the court to mean that there's no daylight between him and the law enforcement function and the Justice Department. In other words, there's no independent Justice Department or FBI. So what was the reasoning? Is this just a sign of a conservative court? Like, what was the reasoning behind this? Or was it a legal sound reasoning? I don't know that they would give him so much power. So this theory has been around for a while. I think, like, since kind of the Reagan years, really, It was very much a part of the legal justifications that the George W. Bush administration put forth for different, you know, presidential powers in the war on terror and expansion of the war of presidential powers. I think one thing to look at is that most, if not all, of the conservative wing of the court, I believe all of them, all of the six justices, their only government experience prior to getting on the court was in the executive branch.

they all worked in the Justice Department and presidential administrations. And so for them, their only perspective on the government is one in which what the policies that they wanted to implement were always constrained. And I think that that has come to inform this judicial philosophy of the president should be able to execute his policies. And so to get to, so that I think is partly what is animating the immunity decision, which is it will chill the ability. the executive branch's ability to be a robust, you know, president if he has to fear that he might be prosecuted after he leaves. We can unpack why that is dumb in a lot of ways. But that's sort of the idea there. And then the shadow docket.

Yeah, the shadow docket. Can I just say something about the shadow docket? So the federal courts have been somewhat of a bulwark to some of Trump's administrations concerning actions, such as sending the National Guard or wanting to send the National Guard, to Chicago. So they stopped that for now. But the Trump administration is now asking the Supreme Court to weigh in on an emergency appeal. And this has been a tactic used over the past nine months, these emergency appeals to the Supreme Court. And the courts have sided mostly with the Trump administration nearly every single time. And what they essentially mean is that they can rule anonymously and without explanation. And it's being called the shadow dockets. Tell me

about the shadow dockets and your concerns? Yeah, I'm sure this works similarly here in Canada. When there's a policy that the administration wants to implement and it is challenged, they go into court. And the first thing that the litigants do is try to get an injunction. In other words, they just try to get a pause on the policy going into effect until everything is litigated and it comes to a final conclusion. I think it's important to note that the lower courts in the United States, I know we focus on the Supreme Court, but the lower courts have done an amazing job of pushing back on this administration, including conservative judges, including Trump appointed judges in a lot of different contexts.

And they have issued these injunctions. And then, as Mary said, those injunctions that pause on the policy has been appealed to the court. And at that point, the court can, A, it has a choice on whether to even, you know, take a look at it. They can just like let it stand, right? Or, and then they can decide what to, whether to stay the injunction, meaning that the injunction is lifted and the policy can go forward or to allow or to keep the injunction in place. What's important to understand is injunctions are based on something called equitable relief, which means that you're looking at fairness, you're looking at who's going to get harmed until we figure this out. If there's

going to be irreparable harm, then we need to pause this until, you know, we, we understand what's legal and what's not. This court, and again, this goes back to, I think, this perspective on the executive branch takes the position that whenever the executive branch is unable to implement its policies, it is irreparably harmed. And therefore, when these injunctions have gone up to the court, they have stayed the injunctions, meaning that the government can continue what it's doing. They don't explain why. And basically, the idea is that we'll rule, you know, we'll eventually get to whether or not this is actually legal later, which could be a year or two later. And so they believe that it is important for there to be nothing standing in the way

of this administration being able to implement it. And they don't give any explanation, which is I think where things go awry because there's no accountability for why they are choosing to do that. are balancing these equities. And they're also not giving any guidance to lower courts on how to then apply this in other contexts. The courts can't even interpret them because there's no reasoning. Asha, is it also part of the problem that many people are just not aware of what's happening of the erosion of the rule of law till it's too late? Like people in the states are not quite aware of all the things that are going on because it's complicated sometimes and it's behind closed doors sometimes too.

I mean, they're obviously concerned about ICE and the talk of National Guards, but did they have a better sense of how it's being eroded in other ways? I think it's less that they don't know what's going on than they're in denial. I mean, and I say this talk, having talked to people that are not Trump fans, I mean, these are people who are, you know, probably voted against him. But when I speak to them, they are like, well, it's. it's fine. They think that because there's litigation happening in the courts and, you know, we've just never been tested in this way and it's always worked out fine for us. So they just

think, well, the courts will handle it. And, you know, if he actually violates a court order, then, you know, I'll be worried. So they really do have this idea that somehow, you know, the Supreme Court's going to come in and save everything. And I think also in many ways it doesn't affect them directly. So I think, you know, there is this weird silver lining of, I don't know if I can call it a silver lining, but, you know, these things that are so in people's faces is actually helpful. So when they see that people are being abducted, like in front of them on college campuses, when people that they know are, you know, sent to a foreign gulag, when they see military in the streets, it becomes harder to stay in denial. So I do think that people are starting to realize. I think

it's hard to not do it. I think the question is the complacency piece, the belief that somehow we're exceptional, we're immune, we're, you know, going to manage, you know, oh, we just need to win the next election. You know, that didn't work out for us the last time, just so you know. So, But I think that there are people who don't want to confront the reality of what's happening. And the language that, you know, the idea of authoritarianism and fascism for them is like, well, we're not, this isn't Germany, you know, 1939. Like, this is still, it still looks normal. The dangers of complacency. Something that was on the mind of American Republican President Dwight D. Eisenhower when in April 1958, he said,

freedom under law is like the air we breathe. People take it for granted and are unaware of it until they are deprived of it. This is CBC Ideas. I'm Nala. This program is brought to you in part by Specsavers. Every day, your eyes go through a lot. Squinting at screens, driving into the bright sun, reading in dim light, even late night drives.

That's why regular eye exams are so important. At Specsavers, every standard eye exam includes an advanced OCT 3D eye scan, technology that helps independent optometrists detect eye and health conditions at their earliest stages. Take care of your eyes. Book your eye exam at spec savers today from just $99, including an OCT scan. Book at specksavers.cavers.cairists. Prices may vary by location. Visit specksavers.cavers.a to learn more. This ascent isn't for everyone. You need grit to climb this high this often. You've got to be an underdog that always over delivers. You've got to be 6,500 hospital staff, 1,000 doctors, all doing so much with so little. You've got to be Scarborough, defined by our uphill battle and always striving towards new heights.

And you can help us keep climbing. Donate at lovescarbro.cairbo.ca.com. Let's return to the 2025 Stanfield Conversation, challenges to the rule of law and the future of liberal democracy. On stage with Ideas producer Mary Link were legal scholars Asha Rangapa and Wayne McKay. In terms of ICE, its budget is now richer than most of the world's militaries,

which is phenomenal, including Canada's. And a recent political article headline read, unfettered and unaccountable, how Trump is building a violent, shadowy federal police force. And right now, of course, it's going after what they perceive to be illegal immigrants, but often they're picking up Americans at the same time. How concerned are you with all that money that is going into ICE

the fact that they do seem unfettered? I'm very concerned. From what I understand, I think ICE is also buying small arms. I saw some article today. They're buying small arms. Like they're buying military equipment with this budget. I'm not really sure what that is needed for. They have picked up 170 at least, I think ProPublica said, 170 U.S. citizens who have been detained, which, of course, is illegal under a constitution without reasonable suspicion, which, by the way, gets back to, again, the shadow docket, because this actually went up, you know, one of the issues went up to the Supreme Court. They stayed an injunction against ICE being able to arrest and detain people. So ICE has basically, like, I think four categories. They can profile.

based on race, where, like, particular locations, Home Depot, for example, where day laborers might be there to be picked up for contracting jobs, the type of work that somebody's doing, so I'm guessing if it's manual labor, and I forgot what the fourth thing is, but it's basically just kind of a stereotype profiling. And in staying the injunction, there was no justification or explanation given, except that Justice Kavanaugh gave, you know, he said, listen, you know, if they were only detaining people or arresting people based on race, that could be problematic. But when it's used in combination with all of these other factors, which statistically these people could be illegal, then it's okay. And they're only detaining these people for a short while. And if somebody

shows them, you know, their proof of citizenship, they immediately let them go. So there's not, there's really, again, there's no irreparable harm here, which is just not true. And I think gets to some of the misinformation and disinformation that is also this other variable in here, because what we are increasingly seeing is both, you know, definitely people in the administration, but also members of the court citing statistics or stating facts that are simply not true. Like, it's not true. It's empirically not true that people who show their citizenship are.

being let go immediately. They're not. They're being detained. So, you know, how do you manage a democracy? How do you maintain the rule of law when people are actually operating on completely, you know, different factual realities? And there's factual reality. That's one thing. I could say a lie or it's not, you know, they're twisting the truth or whatever you want to say politely. There's also deference is a is a key thing too, isn't it, Wayne? Well, definitely deference is a key thing. But I think the other important point here, I think you start off by saying, are people really concerned enough about the erosion of the rule of law? And a lot of people probably don't really understand exactly what that is and the importance of that. And perhaps I can make that point a bit

by talking about a sort of leading Canadian case from the 1950s, the Ron Correlli and DePlessy case, where the then-justice ran defined the rule of law, I think, in a way that people can identify with and understand. And the key thing, and I think this is very relevant to the President Trump situation in the United States right now. Tell us about Maurice. Okay, well... He was a complicated fellow.

Well, exactly. I mean, Maurice DuPlessy, who was a very powerful figure, very powerful premier in the province of Quebec, and with the sort of aid in support of the Catholic Church, really ran things, not, I think, Even his worst critics would have to say he wasn't in any way Trump, but he certainly had some authoritarian tendencies. And part of that, which so often is the case, has just talked about with ICE,

that the targeted figures were the vulnerable people in society, the minorities. And one of them, on a basis of religion, of course, was Jehovah Witnesses. And they were generally quite limited and persecuted in the province of Quebec. and Mr. Ron Corelli, who had a very successful restaurant business, provided bail. He wasn't even involved in any of the actual protests and so on, but he gave bail or provided bail for people. So Mr. DuPlessy, who was both the Premier and the Attorney General, said, well, I'm going to simply take away his liquor license

and will destroy his restaurant business, and he did. And they challenged that, and his view was, well, I don't really care what the court say. I'm Mr. DuPlessy, and I can do this, which sounds a little bit Trumpian in some ways. And the Supreme Court said, no, you can't. That there's a number of reasons that you can't. For one, the rule of law is a basic principle of our constitutional democracy inherited from the UK. And one part of that is that no person is above the law. It doesn't matter if you're the premier or you're the president or what you are. All people are subject to the rule of law,

and that the rule of law is to promote order and government by rules, not by individual whims. So that's one part. But he also made the really important point that equality is part of the rule of law. So when you're targeting vulnerable minorities, that's another reason that this shouldn't stand, but perhaps most significant of all to your deference point,

even though the courts, especially in a parliamentary democracy, have to give some deference to the elected lawmakers, and as it should be, they're the main policymakers, that there's no such thing as unfettered discretion. There's no such thing as discretion without any limits. And interestingly, when we came back in much later in 1982 to our charter of rights, we kind of make the same point. There's no such thing as absolute rights either. They all are subject to limits. But on that point, the legislation was fairly broad, but even if it is, the courts are going to read into that, that you cannot abuse

your discretion, however broad it may be. And he made the very simple but important point that whether or not he gave bail to Jehovah Witnesses had nothing to do with whether or not he should have a liquor license. If he was living people in who were under 18 or he was operating on inappropriate times, that's relevant to a liquor license, but it's not relevant. to a liquor license, what your religion is or how you practice it. So I think that's a really important point. And when people understand that, it gives it more meaning. And, Wayne, I just want to, before we go later on to the Insurrection Act, the War Measures Act,

I just want to do a brief side trip to, we right now, we have the notwithstanding clause case here in Canada. Currently, five provinces, including Quebec, Ontario, Alberta, and Nova Scotia, are calling on Prime Minister Carney to back down in a land. Mark Supreme Court of Canada case that revolves around the Charter's notwithstanding clause and the government's power to override the rights of Canadians. And in a legal filing in September 2025, Ottawa asked the top court to impose restrictions on government's use of the notwithstanding clause. What are your thoughts on this legal battle?

Because this does have to do with our rights as citizens. It does. And it's a complicated thing. so I'll try to make it somewhat clear. First of all, the notwithstanding clause in our charter is something that Americans and others find very odd because the effect of the notwithstanding clause is that most of the significant rights of our charter

can be set aside for, at first, a limited time of five years, but then can be renewed. And the first question, people might ask, why would you put that in a constitution? And Americans would frequently say, well, if we had that in the United States, we never would have desegregated the schools.

Georgia and other provinces would have just, or states would have just said, we're doing the notwithstanding clause. The answer, in simple terms, is it was kind of a, from a rights point of view, a sort of a deal with the devil, that the provinces,

not that they were the devil on this, but wouldn't agree to a charter unless that clause was in there. And that was really a pivotal part of the Constitution. and that's part of what the various premiers that you listed off are making that point that you can't, through the courts and through your own interpretation, change that deal. However, it is a very big potential loophole, especially in the kind of times in which we live.

And like the Ron Coralli and DePlessy case, again, the targeted group is a minority and a vulnerable group. In this case, people who have, well, it's on the surface, it's all. religions, but... Bill C-21 in this... Bill C-21. Not allowed to wear, for example, hijabs as a teacher and everything like that. In any kind of religious garb is not allowed to be worn in the public service. Teachers, police officers, civil servants, and so on. And it is, in one sense, to be fair, notionally neutral in that the cross couldn't be worn either, but really, in practical terms, it's limiting people who, of the Muslim faith in particular in others who are more likely to want to do that. So the argument in part of the federal

government intervention, as I understand it, is a really important one to say, in addition to the usual procedural things, you have to, if you're going to use the notwithstanding clause, you have to do it in the right way procedurally. But the traditional position has been, courts can't get into whether it's a good idea or a bad idea or whether we like it or not. That's for them to decide. I think part of the argument they're trying to make now is two things. If you're going to be renewing it many times over five years, that's a different situation. And I think another one is that...

But you could still be them renewing a bad law every five years, which many would consider Bill 21 to be. Well, absolutely. And that's the second part of the argument, which is that when you're attacking and maybe hopefully a core Canadian value, or two of them, perhaps, equality and diversity, surely you can't set aside the Constitution in a way that takes away from your own identity and sort of raison d'etra as a nation. I want to talk about the Insurrection Act that Trump has been threatening so many times to use. It's been called one of the most dangerous laws in America. A couple days ago, Trump said, I'm allowed, as you know, as president, use the Insurrection Act. They can use that. And everybody

agrees you're allowed to use that. And there's no more. cases, there's no more anything. We're trying to do it in a nicer manner, but we can always use the Insurrection Act if we want. The Insurrection Act, is it one of the most dangerous laws? Let's first talk about what the Insurrection Act isn't, and then we can talk about what it is, because often people get the Insurrection Act confused with martial law. Marshall Law is when civilian government is replaced by the military. Military courts, there's no more legislatures. So that is a completely different. scenario, which we're not at. And I just say that because often people think the

Insurrection Act means that you're instituting martial law. That is not the case. The Insurrection Act effectively allows the president to utilize the armed forces to engage in domestic law enforcement. In the United States, the United States armed forces are prohibited by law from engaging in domestic law enforcement functions under something called the Posse Cometatis Act. The Insurrection Act is an exception to the Posse Cometatis Act. So National Guards are the state militias. We have our U.S. Armed Forces. You have the state militias. The National Guard, the state militias, answer to the governor of the state. And so the Constitution of the United States gives Congress the power to provide for the calling forth of the militia

for federal purposes by the president. So the idea was to create a buffer, okay, that there might be instances where the militia might be needed to be called into federal service, but Congress creates the procedure by which that can happen and the conditions under which that can happen. Trump has federalized these national guards using one of these statutes that Congress has passed, which basically puts the national guards that normally answer to the governor under his command and puts them on equal footing with the U.S. armed forces. However, even after he federalizes them, they are all subject to the same limitation of the Posse Cometatus Act,

which means that whether they're U.S. Marines or whether they're the California National Guard that he's federalized or the Illinois National Guard that he's federalized, they can basically wander around. The executive branch argues that they are there in a protective capacity to protect federal property and to protect federal agents, ICE agents, but they're not allowed to do routine law enforcement so they cannot detain. They can't do crowd control. They can't do riot control. They can't arrest. They can't do any of that. The Insurrection Act would essentially allow them to be able to engage in those functions. They can then enforce federal law. Now, what's really interesting is that the leading people who are kind of trying to dissect this note that even under the

Insurrection Act, federal forces would not be allowed to execute state criminal law. So this whole idea that, you know, they're there to combat crime, which is all a state level, you know, usually state level offenses is also pretextual. But he's basically done half of it, right? So he's gotten at least in California, he's trying to in Portland and in Chicago get these federal forces in there so that I think part of the end game is to just, A, get people normalized to the idea of having federal forces on the street, right? You get normalized to seeing people in camo with long guns. I spent a year in Bogota, Columbia, on a full bright, I know what this looks like. It's a very different life when you walk around. And, you know, there are some

places. If you go to New York, for example, in Grand Central Station, you see this, right? And it's a very big presence. The idea to invoke the Insurrection Act, I think, would then be to be able to potentially impact voters on Election Day. Because if then what you have are people who are allowed to arrest terrorists or arrest illegal voters, you know, and you're able to do that with people standing in line. So these are all things that are happening in tandem. You make it harder to vote by mail so you force people to turn out. If they turn out, then you can arrest them, even if you're detaining them to let them go two days later, then you've already missed your chance to vote, right? So I think that that's part of it. I think that's what the end game is to normalize and then to

eventually use that law enforcement function to be able to potentially impact voter turnout during the election. That's what I think is going on. Is the United States turning into a police state? I mean, I think that's, you know, what he wants to do. I think that's the idea is to have these military forces. Now, you know, what's weird is the military doesn't want to do this. I mean, this is something that in the United States, you know, I come from a military family. my dad was in the Army. I grew up in a military area in Hampton Roads, Virginia. The U.S. military is highly professionalized. It's socialized into a very clear code of conduct. It's very much

inculcated that they are not there to turn against the people. And in fact, our entire constitutional structure is there to prevent an executive from turning the military against its own people. You know, we're not big fans of kings, right? And no offense. But, you know, just from what happened. Oh, ironically, you're getting one. Yeah, we are. Exactly. You know, so there are, for example, the Constitution limits appropriations for the army, but not the Navy to two years. So every two years, Congress has to reappropriate money. And it's because they wanted to always have a check on the president's ability to have a standing army. You know, the National Guard, the military, they don't want to do this. But then you have the U.S. Secretary, not of defense anymore, but the U.S. Secretary of War, it's still getting used to that.

The U.S. Secretary of War, Pete Heggsat, and he has fired some of the Army's top, uniformed lawyers. He has told reporters that he views him as potential, quote, roadblocks to orders that are given by a commander-in-chief. Yes. So I so call it Secretary of Defense because it is a statutorily created agency. So anyway, Secretary of Defense, I mean, basically he said we're going to get rid of those stupid rules of engagement. Those of you who have any military background know that rules of engagement are basically law of war rules that determine who you're allowed to use military force against. You know, you can only use it against military targets. You know, you have to, you know, avoid, you know, civilian casualties, all of these things. So I do think that there could potentially be the same. endgame, and we've heard the president talk about the enemy within, of wanting to condition the military to be able to use military force against Americans. And I think it is not out of the picture that that might be where they're going. I do, I also think that the military is being conditioned to potentially, you know, we've seen these strikes in the Caribbean. I cannot discern

any legal basis for them. They seem to be illegal orders. This seems to be murder. This seems to be murder on the high seas, essentially. And we've also already seen an admiral resign over that. Secretary Hegset has also, one of the first things he did was fire the Jags, the Judge Advocate General's Corps. These are the top military lawyers who assess whether, you know, it's always the commander's decision whether or not to do the action, but the Jags are the ones who provide the advice, the legal advice on whether it's a legal order, what international rules that it might come in conflict with, et cetera. He fired those. So I don't know where this is going. I mean, I think that it's going to be very hard to subvert, but I do think that there is an effort

underway to subvert some of those internal norms and to get the military to be more pliant. because I think that was one institution where Trump found a lot of resistance in the first administration from his own generals. And he did not like that. And he's also getting his attorney general to be more pliant to let go people like Santos from jail and then go after judges and check on their mortgages and try to get them charged with things. So it's being weaponized as well, the justice system against political enemies. Yes. And this goes back to this. again, this interpretation of Article 2, where the Justice Department exists to execute his, like, where the president can actually direct investigations, individual investigations.

And that has been a norm that until now, there was always a firewall between the president and the Justice Department. But to direct individual investigations to say, investigate him, prosecute him, that has always been, I mean, that is, that is definitely a hallmark of authority. authoritarianism to go after your enemies directly. And so, Wayne, in Canada, how vulnerable are we in Canada to the misuse by the wrong person of the War Measures Act? Our War Measures Act has only ever been used three times during World War I, when we're

obviously facing a World War and have to act quickly and so on, during World War II, similarly, the so-called FLQ crisis of 1970, when we had something closer to a war, kind of insurrection or alleged insurrection of separatist, extreme separatists and killing of a person, all those kind of things. And that peacetime use kind of ironically by Trudeau the elder, Pierre Trudeau first, was one of the, during a non-war situation, was the first time. That got replaced, I think, under the Mulroney government in 1988, with the Emergency Measures Act, which now was invoked for the first and only time by Justin Trudeau during COVID,

but maybe this makes a little bit of difference, not actually because of COVID. He didn't exercise it to allow them to do the kind of things they needed to do to respond to COVID, but during one part of it, which was the trucker boycott, and particularly in Ottawa, which was related to COVID because a lot of their objections with a lot of support from right-wing groups and so on in the U.S. was two vaccine and masking orders and that kind of thing. And the argument was that they needed that extra power to respond to the unusual occupation of Ottawa

and causing lots of harm to people. Now, whether that was a good use or a bad use is debated. The Rullo Commission said it was a legitimate use, but then a federal court has said it wasn't. So there's debate about that. And this leads me finally to your, kind of point. There are vulnerabilities there in that we do have, most democracies have to have some kind of statute that would give you power in times of crisis and emergency, but they've been

very sparingly used. And the current version, the Emergency Measures Act, has a lot of protections in it that the original War Measures Act did not have in terms of extending still a lot of charter protection, all kinds of oversight by the Parliament and the Senate, the various agencies. So while it's there and it is a vulnerability in that a tyrant, somebody who's bent on taking power, could use it. There's a lot of checks and balances built into it in a way that doesn't seem to be the case in the United States. So do you think we don't have that possibility here? We have that possibility. And I mentioned it briefly in the introduction. The Plato quote, that really ultimately a democracy and freedom depends on the people, both the people

to respond and object if abuses are taking place and the quality and principles and characters of the people as leaders who lead the country. And if you don't have that, then no law is really going to protect you. Just to go to the dark side briefly, you know, Trump keeps saying the 54th state, he's bombing these boats off Caribbean and alleged drug, drug boats and in South America, the Arctic is sadly because of climate change opening up that waterway. A lot of countries are looking at that. How easy would it be for him to go after us in terms of the law? So when I was in the FBI, when we did firearms training, there was a mantra that they taught us, which is action beats reaction. And we would do these scenarios where you would have to

determine on the fly whether to fire or not fire. And what their point was that sometimes you have, I mean, you're making decisions based on these like split level things because by the time you determine whether the person is reaching for their wallet or their gun, it's too late. Okay. Action beats reaction is the main point here. And I think that is, describes the relationship of war powers in the U.S. government. That the Constitution legally separates war powers into giving Congress the power to declare war and making the president the commander-in-chief of the armed forces. So theoretically, Congress has to authorize the use of military force, and then once that is authorized, the president can have command control about how to actually deploy the forces in what

tactics, et cetera, to use. That's not, I mean, we, the last time Congress declared war was in World War II. It has declared limited hostilities in other circumstances. including after 9-11, for example. But what presidents have learned is that action beats reaction. And so whatever the law says, the president is in control of the armed forces. And if he wants to deploy troops, he can do that. And then, and this is basically what has happened, what led Congress to pass the war powers resolution in 1973 after Vietnam, because presidents of both parties have basically taken

the position of, okay, so stop me. And so if he wants to, he's doing it right now in the Caribbean, there is no legal basis to be targeting those. And he is literally blowing up. I think it's now up to seven boats and I don't know how many casualties there are with no legal justification and even not even really giving Congress a legal justification for it. So I think that it is entirely possible that if he wants to do it, he would.

And then it would really depend on whether the people ordered to do it would be able to say that is an illegal order and I won't. And I don't know that that would be as clear as, you know, ordering a strike on someone that is not a valid military target. Asha, Aristotle, believe the rule of law is essential for a just society saying, quote, the law is reason, free from passion and that it is more proper that law should govern. than any one of its citizens. But how much is politics seeping into court rulings in the states? Is the law still free from passion in the United States? So I think that the rule of law operates on two levels. It's not enough that the rule of law exists in fact, right,

that courts are treating people equally, that elections are fair. people have to perceive that it is operating legitimately. The hallmark of the rule of law is your ability to accept an outcome of a process even when it doesn't come out in your favor. Okay? So it is accepting a court decision even when the court rules against you. It is accepting the outcome of election, even when your candidate loses. And so what we're seeing with the, I think a huge part of the erosion of the rule of law is this influence operation that has been undertaken by both foreign adversaries and now adopted by domestic actors who find it politically expedient to erode people's trust in these processes, right? And once you do that, when every election becomes an accusation of being rigged and can become a way to foment violence, when any court case that rules against you is because the judges were rigged or, you know, the jury was rigged or whatever, that is where you end up.

And so, I mean, I would say that, frankly, I think the rule of law considering all of the challenges has been holding. up pretty well. We've seen this happen over and over again, where juries, particularly in D.C., are simply tossing these cases out that are being brought improperly. There are judges that are imposing injunctions on the administration, even if they end up getting stayed at the Supreme Court, most of them are. We are in a bad place. We are in it, as I said. But I think that people are pushing back. And I think that the biggest threat right now is for people to believe, believe that it's a fate accompli, that the, you know, nothing matters. I see that all the time on social media. You know, I'll point out something is illegal and they're like, who cares? And it's

like, well, you should care because it matters whether this administration is breaking the law or not. Even if they can't be held accountable now, it is a, you know, you need to chronicle. Like, you have to act as though it matters. We say, you know, in the United States, the dollar bill, the dollar bill has value because people believe that it has value. And I think democracy is the same way. And I think for where we are, I still have hope. Good. I think there's hope as well. It's really vital to any democracy that people stand up to abuse of power.

And there's a great quote of one of many from Martin Luther King Jr. Where he made the comment, I think, more or less to this effect, that it's not so much the actions of bad people who are cruel and abusive, but the actions of good people who say nothing about that that really bothers me. I think it is encouraging that there's some more pushback in the No King movements and so on, but I think that's clearly a point of vulnerability for Canada as well. And to remember that this phenomenon that we're seeing around the world, we think about authoritarianism and coups as, you know,

militaries and tanks coming in, But if you read the scholarship, the literature that people are writing about the rise of authoritarianism, military coups are out and legal coups are in, which means that what happens now is that you most often have people elected into office and then they stay there or they subvert the rules so that they amass more power. So what you get are there's different names for electoral autocracy, competitive authoritarianism, but basically what they're describing as a paper democracy where you have the trappings of democracy, but the people don't really have the robust rights. The press doesn't have the robust rights that they normally do. And I think that that can really happen anywhere. And the most important thing is to not give away the power because that happens from

people essentially giving, electing these people that they know we're going to do this. And as Tim Snyder says, don't obey in advance. You know, be vigilant and protect what you have because it's precious. That was the conclusion to the 2025 Stanfield Conversation Challenges to the Rule of Law and the Future of Liberal Democracy. On stage with Ideas producer Mary Link were legal scholars Asha Rangapa and Wayne McKay. Special thanks to Jennifer Andrews, David Black, Brian Bow, Navillev McIntyre of Dalhousie University,

Greg Guy of CBC Atlantic, and co-chair of the Stanfield Conversations, Anne McClellan. Technical production, Pat Martin and Emily Kiervezio. Lisa Ayuso is Ideas web producer. Senior producer Nicola Luxchich. Greg Kelly is the executive producer of ideas, and I'm Nala Ayyed.

For more CBC podcasts, go to cbc.ca.ca slash podcasts.