Trump 2.0 will have an unusual amount of power

Noah Feldman, Tribune News Service

Right now, Democrats are asking despairingly what, if anything, can constrain Donald Trump from doing whatever he wants in his second term. And Republicans may be assuming optimistically that, with the Senate and the House in his pocket, there will be little to stand in the president-elect’s way. I have some good news and some bad news for each group. Democracy means the rule of the people, and the people have spoken in electing Trump.

Constitutional democracy means democracy with constraints. And the constraints we have now are weaker than they have ever been.

The classic limits on a president’s domestic power include Congress, the courts, fear of impeachment, fear of prosecution, government bureaucracy, and the financial markets, with press and public opinion somewhere in the backdrop.

Nearly all of these, except the markets, are substantially weaker for Trump than they have been for any other modern second-term president. None, however, has been absolutely eliminated, and all will matter for shaping Trump’s presidency.
What follows is a primer on Trump’s limits — which is also, at a deeper level, an account of what constitutional democracy looks like at this particularly delicate moment in the history of the American republic.

The legislative branch is the obvious place to start. Republicans will have narrow majorities in the Senate and the House, a similar situation to the start of Trump’s first term in 2017. And any president needs Congress to pass major legislation. But Trump ran for office without proposing any specific, major legislative program that would require congressional approval. If he decides to proceed mostly through executive orders, it would limit Congress’ leverage in a second Trump term.

Some of his suggestions, like eliminating the income tax, would certainly demand both houses of Congress be on board, and it could be difficult to get their acquiescence given the massive fiscal shortfalls such a plan would create. But Trump may never have really intended to make such a transformational step. And he will have no trouble getting majorities in both houses to approve tax cuts. You might think that Trump’s tariffs would require legislative action.

Congress, not the president, has the constitutional right to set import duties. But Congress gave away many of its powers on tariffs years ago. A range of laws authorize the president to impose tariffs when he finds various conditions to be met. And according to Trump’s last administration, under the International Emergency Economic Powers Act of 1977, the president can invoke emergency powers to impose tariffs entirely on his own. Congress could reverse those tariffs, but only by a two-thirds majority in both houses. It’s unclear whether the IEEPA could be used to impose tariffs on, say, Mexico. But when Richard Nixon imposed a tariff using similar emergency powers under a predecessor statute, an appeals courts upheld the action.

And it’s worth noting that the incoming Congress will be substantially more MAGA-oriented than the Republican Congress of 2017 to 2019. There may be much more support for Trump’s most extreme actions now than in the past. Indeed, rather than checking Trump, some in Congress may want to press Trump to be even more radical than he would choose to be on his own — for instance, by passing a national abortion ban that Trump has said he would not support.

Congress, of course, also has some oversight power over executive branch actions. But it’s unlikely to use those powers to investigate the Trump administration if Republicans retain their majorities. Regardless, oversight only works if anyone cares what congressional investigations uncover. Trump doesn’t care, and very probably, neither does a majority of the public.

Impeachment is the other constitutional tool that the framers gave to Congress to constrain a president who blatantly violates the rule of law. Yet impeachment, I am sorry to say, is now effectively dead as a meaningful tool, at least with regard to Trump. Trump was impeached twice — first for his attempt to get Ukraine to target Joe Biden before the 2020 election and second for his role in the violence of Jan. 6, 2021. Unashamed, Trump fought back and twice avoided removal by the Senate.

Trump’s reelection strongly indicates that most of the American public doesn’t care about impeachment where Trump is concerned. Ask yourself: if Democrats win the House, what conduct would merit a third impeachment — and what conduct would at this point shock the public? Maybe there’s something Trump could do that would ignite righteous indignation among his supporters. But at this point, it’s hard to imagine what that would be.

According to the design of the Constitution, the judiciary is the other branch that’s supposed to check the president. And in a second Trump term, the courts will perhaps the best avenue to limit Trump’s wilder impulses. In Trump’s first term, the courts did reasonably well at constraining his actions when they were demonstrably in violation of federal law. Trump had to reformulate his Muslim travel ban multiple times before the Supreme Court upheld a version of it. After that, the courts gave him less latitude.

He was blocked from corrupting the US census, for example, and from rescinding the Deferred Action for Childhood Arrivals, or DACA, programme. It's true that Trump later went on to appoint a massive number of very conservative judges to the federal bench, and that in at least some courtrooms, there will now be less resistance to Trump’s more extreme actions. However, at the Supreme Court, despite Trump’s three appointments, there are still at least three conservative justices who would probably be prepared to join the court’s liberals to block presidential actions that are clearly lawless — Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Amy Coney Barrett.

The other way the legal system can limit a president’s behavior is if he fears that his associates might be criminally prosecuted — or that he himself might be prosecuted after leaving office. But it seems fair to say that Trump’s Department of Justice will not be investigating any part of his administration for overreach. That was obvious even before he announced plans to nominate Florida Representative Matt Gaetz to be attorney general.

As for Trump himself, he has now lived through what most ex-presidents would have considered the nightmare scenario of being in criminal jeopardy. He responded by weaponising the prosecutions against him and winning reelection — as well as winning a major grant of presidential immunity from the Supreme Court. Together, those developments have all but eliminated the threat of further federal criminal prosecution. (His state criminal convictions in New York remain, at least for now, but no one seriously believes he will serve any jail time in connection with them.) The upshot is that he can now be fairly unconcerned about further criminal prosecution.

The career civil servants who make the government work on a day-to-day basis — the people whom Trump has denounced as the deep state — are another candidate for limiting Trump’s ability to do whatever he wants. Famously, some civil servants claimed during Trump’s first term that they were working to hinder Trump’s policies from within the administration with the protection of their lifetime appointments.