On Legality and Reality in an Autocratizing State

Laws are increasingly unequally unenforced or selectively applied, and relying on them without acknowledging that erosion is both irresponsible and dangerous.

Legal interpretation is always critical, but from a public safety standpoint, reality matters too. We’re in a semi-post-legal moment: laws are broken first, challenged later, and consequences, if they come, arrive diluted and delayed. Multiple credible organizations assess that the U.S. is autocratizing. Ignoring that reality does not make it go away. The structures of law remain, but enforcement is selective, precedent is routinely ignored, and mechanisms of accountability are being dismantled.

• It wasn’t legal to dismantle USAID.

• It wasn’t legal to send detainees to a prison in El Salvador.

• It’s not legal to withhold congressionally allocated funds.

Yet all of that has happened, and even if some of it is reversed, much of the damage cannot be undone. Court rulings cannot undo the tens of thousands of deaths due to the demise of USAID. In other situations where the law cannot undo what has been done, we should treat the risks accordingly.

This does not mean the law is irrelevant. Understanding what is legal is critical for assessing risk in our current state. It doesn’t mean we should give up on the courts or the Constitution. It doesn’t mean rights no longer matter. It does mean that it may be dangerous and irresponsible to reassure people with statements like “the law prevents this” or “the law does not allow.” That may have been true at one time. Right now, it isn’t. It should be—but clearly, it’s not. Ignoring that only ensures that in worst-case scenarios, the public is left surprised, unprepared, and afraid.

This isn’t a call for panic. The idea that it is the inevitable response to hard truths is condescending. True panic is rare. What’s common is people being left uninformed and unprepared because someone else decided the truth was too much for them to handle. That is not protective; it’s paternalism disguised as caution. It also sets people up for a greater sense of loss and outrage should the worst happen, as it deprives them of agency.

The right approach, especially from a public health perspective, is to reassess with clarity and realism, especially in the context of protest and civil resistance. We have seen schools reluctantly say that while the law protects free speech, the current reality is that the government may retaliate. If students choose to have opinions publicly (and I sincerely hope they do), they make that decision fully informed about the risks. The same is true here.

• It is not ethical to assure protesters, “legally, they can’t…” as if legality guarantees protection. That framing implies a level of safety that no longer reliably exists.

• The more honest and ethical framing is: “The law says they cannot do xyz. But if they do, here’s how to respond. Here’s how to stay safe. Here’s what to expect.”

Preparing people for both what should happen and what might happen is not fearmongering—it’s information the public has a right to know.