Would It Be Immoral for Joe Biden to Break the Law to Save the US from Fascism?

Premise:   The Republican Party is now a fascist insurrectionist party.  It breaks the Constitution and statute laws nearly every day.  If the Democrats do not start to play by some of that playbook, the American democratic republic will cease to exist and a fascist dictatorship of the minority will take its place.

The remedy:  Biden must be willing to break some laws to prevent the fascist takeover from succeeding.

The Question:  Would it be immoral for Pres. Biden to break one or more laws to save the US from fascism?

Yes, if:

· Law and morality are identical (a view held by practically no one).

· There were a known probability that the consequences would be worse than letting the country be taken over by fascist coup.  (There is no such known probability.)

· If the law to be broken were established by a majority vote in a free and fair election.  (The problem with this is that a majority may, directly or through their representatives, enact an unjust law, e.g. laws against homosexuality.)

No, if:

· Thomas Hobbes is right that the King (President, Supreme Leader) wields absolute power over his subjects by virtue of their free act of submission.  The only possible act of his that would be immoral is unjustly killing one or more of his subjects.

· Law and morality are distinct normative domains (legal positivism). On this view, morality may allow for a law to be broken or even imply that it is a duty to do so.

· The law to be broken is consequential for the very existence of American democracy, e.g. state legislatures giving themselves power to control election results.

· Breaking the law would bring about better consequences for the people than letting the law stand unmolested (consequentialism).

A bad example

Biden suspends the electoral college before the 2024 presidential election.  He could issue an executive order to that effect, but it is unlikely that he could enforce it.  Both parties would attack him, causing too much political unrest.

A better example

President Biden could declare a state of emergency in the wake of the Dobbs ruling, declare that ruling unconstitutional or illegitimate, and authorize the FBI or other enforcement agency to arrest anyone in any state that attempted to block a woman from getting an abortion.  Such an executive order would probably be deemed illegal under some theory of states’ rights and SCOTUS absolutism, but it would not be immoral according to the "No" criteria listed above.