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Feldman: Trump 2.0 will have an unusual amount of power
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Feldman: Trump 2.0 will have an unusual amount of power

Noah Feldman

Right now, Democrats are desperately asking what, if anything, could stop Donald Trump from getting his way in his second term. And Republicans may be optimistically assuming that, with the Senate and the House in their pocket, the next president will have little to stand in his way. I have good and bad news for every group.

Democracy means rule by the people, and the people spoke when they elected Trump. Constitutional democracy means democracy with restrictions. And the restrictions we have now are weaker than ever. Classic limits to a president’s domestic power include Congress, the courts, fear of impeachment, fear of prosecution, government bureaucracy, and financial markets; In the background are the press and the public. Almost all of these, except markets, are much weaker for Trump than for other modern second-term presidents. But none of them have been completely eliminated, and all will be important in shaping Trump’s presidency.

Below is a primer on Trump’s limits; it is also, at a deeper level, a description of what constitutional democracy looks like at this particularly sensitive moment in American republican history.

Legislature

The legislature is the obvious place to start. Republicans will have narrow majorities in the Senate and House of Representatives; This is a similar situation to the beginning of Trump’s first term in 2017. And any president needs Congress to pass important legislation.

But Trump ran for office without proposing any specific, major legislative programs that would require congressional approval. If he decides to proceed mostly through executive orders, that will limit Congress’s influence during Trump’s second term.

Some of his proposals, such as eliminating the income tax, would certainly require both houses of Congress to agree, and gaining their consent could be difficult given the massive fiscal deficit such a plan would create. But Trump may never have planned to take such a transformational step. And it will have no problem getting majorities in both chambers to approve tax cuts.

You might think Trump’s tariffs would warrant legal action. Congress, not the president, has the constitutional right to set import duties. But Congress had given away most of its authority over tariffs years earlier. A set of laws gives the president the power to impose tariffs if he finds various conditions that must be met. And under Trump’s last administration, under the International Emergency Economic Powers Act of 1977, the president could use emergency powers to impose tariffs entirely on his own. Congress could reverse these tariffs, but only with a two-thirds majority in both houses. It is unclear whether IEEPA could be used to impose tariffs on Mexico, for example. But when Richard Nixon imposed a tariff using similar emergency powers under an earlier law, appellate courts upheld the case.

It’s also worth noting that the next Congress will be significantly more MAGA-oriented than the 2017-2019 Republican Congress. Trump’s most extreme actions may attract more support now than in the past. In fact, instead of checking Trump, some in Congress may want to pressure Trump to be more radical than he would choose on his own; such as passing a national abortion ban that Trump has said he will not support.

Congress, of course, also has some oversight authority over the actions of the executive branch. However, it does not seem possible to use these powers to investigate the Trump administration if Republicans remain in the majority. Regardless, oversight only works if someone cares about what congressional investigations uncover. Trump doesn’t care, and probably the majority of the public doesn’t care either.

Impeachment is the other constitutional tool the framers gave Congress to restrain a president who clearly violates the rule of law. But I’m sorry to say that impeachment is now effectively dead as a meaningful tool, at least for Trump. Trump has been impeached twice; the first for his attempt to get Ukraine to target Joe Biden before the 2020 election, and the second for his role in the violence on January 6, 2021. Trump responded shamelessly and twice escaped impeachment by the Senate.

Trump’s re-election strongly suggests that most Americans do not care about impeachment when it comes to Trump. Ask yourself this: If House Democrats win, what behavior would merit a third impeachment, and what behavior would shock the public at this point? Maybe it’s possible Trump will do something to ignite righteous anger among his supporters. But at this point it’s hard to imagine what that would be.

courts

According to the design of the Constitution, the other body that must supervise the president is the judiciary. And in Trump’s second term, the courts will perhaps be the best way to limit Trump’s wild impulses.

During Trump’s first term, the courts were quite successful in restricting his actions that clearly violated 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. For example, he was blocked from tampering with the U.S. census and canceling the Deferred Action for Childhood Arrivals, or DACA, program.

It is true that Trump subsequently appointed scores of conservative judges to the federal bench, and that there will now be less resistance to Trump’s more extreme actions, at least in some courtrooms. However, there are at least three conservative justices on the Supreme Court who are likely ready to join the court’s liberals in blocking clearly unlawful presidential actions, despite Trump’s three appointments: Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy. Coney Barrett.

Another way the legal system may constrain a president’s behavior is if the president fears that his fellow presidents may face criminal prosecution or that he himself may be prosecuted after leaving office. But it seems safe to say that Trump’s Justice Department will not investigate any part of his administration for overreach. That was clear even before he announced plans to nominate Florida Rep. Matt Gaetz for attorney general.

As for Trump, he lived through what most former presidents would now consider a criminal endangerment nightmare scenario. He responded by weaponizing the lawsuits against him and winning re-election, as well as winning large amounts of presidential immunity from the Supreme Court. All of these 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 face any prison time in connection with them.) As a result, he may now be quite reckless about further criminal prosecution.

Civil Servants

Career civil servants who ensure the day-to-day running of the government (who Trump denounces 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 tried to block Trump’s policies from within the administration by retaining lifetime appointments.

Of course, Trump believes his effectiveness in his first term is limited by bureaucracy. So he has a plan to fire many high-ranking civil servants and possibly instill the fear of God in whoever he chooses to keep.

This plan is called Schedule F. According to the Civil Service Act 1978, civil service protections include “the character of the position of confidential, policy-making, policy-making or policy-advocating.” Late in his first term, Trump issued an executive order creating the authority to reclassify some civil servants as belonging to this legal category and place them under the Schedule F heading. The plan at the time was to fire them if they did not toe the Trump line. He doesn’t know for sure because, as a result, this provision was never implemented.

Now Trump has promised to bring back Schedule F. If he does this, there will be a huge legal battle over this issue. It appears that if Trump wins this fight, a significant number of key career officials will choose to resign. This would be principled, but would also ensure that they are no longer in a position to restrain particularly reckless or unlawful actions.

One potential constraint on Trump is that if he loses large numbers of civil servants, it may become harder to run the government, and thus harder to enact any policies. But a deterioration in government effectiveness is hardly something to root for.

Media, Markets and Audiences

Now that we have exhausted the basic government mechanisms to rein in Trump, what remains is non-governmental organizations such as the press, markets and public opinion.

There has never been a president more constrained by what the press says about him. The reasons underlying the ability to escape the consequences of press condemnation are complex and diverse. They started with her celebrity status; extended to the political polarization of the country; and reinforced by the rise of social media and channels such as YouTube and podcasts; Together these have the capacity to separate the old press from the formation of public opinion.

On a personal level, Trump probably doesn’t like being attacked by major media outlets. Perhaps some news is heartbreaking enough to influence policy; For example, in 2018, it was revealed that news about family separations at the border encouraged the administration to reverse this policy. But it will be difficult to understand how anyone could think of meaningfully limiting the actions of the press. He can run the country without Fox News.

But Trump cares what financial markets think about his policies. Moreover, the markets clearly believe that Trump is listening. While Trump’s most consistent economic messages are self-destructive tariffs and a desire to meddle with the Fed, this is the only logical explanation why markets have reacted so positively to Trump’s re-election. These changes could spook markets if investors truly believe Trump can achieve them. But if Trump is merely touting ideas and willing to reverse course in the face of market turmoil, investors have less to worry about.

On the one hand, it’s a good thing that markets can control some of Trump’s dangerous ideas. Financial markets, on the other hand, are not designed to preserve democratic institutions and only care about democracy insofar as it provides a stable set of structures to facilitate capital accumulation. As we know from the Chinese example, capital can expand and grow in the absence of democracy. A democracy that relies on financial markets to keep the president in check is a democracy that has squandered many of the mechanisms that the framers put in place to protect him.

Finally, we come to the public. The sad, hard truth is that the public can only constrain a president if he has what the framers called political virtue: the values, understanding, and consideration needed to make good decisions. Richard Nixon was a second-term president when he resigned in the face of the expected embarrassment of impeachment and perhaps a criminal trial. This embarrassment was linked to his perception that the public and members of his own party were appalled by his behavior in the Watergate scandal.

Where the public is no longer capable of feeling shock or horror, there is no room for shame for any president. Of course, Trump himself seems pretty shameless; But this is only incidental in a world where the public cannot feel that they should be ashamed.

The writers of the U.S. Constitution did not want their fragile new republic to rely on the private merits of public figures. So they designed a system of checks and balances. We cannot continue to erode these controls and expect our democracy to move forward unscathed.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author of the recent book “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”