How Much Can Trump 2.0 Get Away With?
Portside Date:
Author: Thomas B. Edsall
Date of source:
New York Times

“I am your warrior, I am your justice,” Donald Trump told the crowd at the Conservative Political Action Conference in National Harbor, Md., on March 4. “And for those who have been wronged and betrayed, I am your retribution.”

How much power would Trump have in a second term to enact his agenda of revenge?

I asked Laurence H. Tribe, a professor of constitutional law at Harvard, how free Trump would be to pursue his draconian plan.

Tribe replied by email:

There is little doubt that Donald Trump could impose authoritarian policies that endanger dissent, erase the requirements that ensure at least a modicum of the consent of the governed, and are downright dictatorial while acting entirely within the literal scope of the law although, needless to say, in flagrant defiance of its spirit. Neither the Constitution’s text nor the language of the federal statutes and regulations in force create guardrails that Trump would need to crash through in a way that courts hewing to the text would feel an obligation to prevent or to redress.

Congress and the courts have granted the president powers that in Trump’s hands could fundamentally weaken rights and freedoms most Americans believe are secure and guaranteed under law.

Tribe continued:

Many of the statutes Congress has enacted, especially in the post-World War II era, delegate to any sitting president such extraordinary powers to declare “national emergencies” when, in their own unreviewable judgment, the “national interest” or the “national security” warrants, and give presidential declarations of that kind the power to trigger such sweeping executive authorities that a president could comfortably indulge authoritarian aspirations of demoting or detaining all those who stand in their way or of seizing property or otherwise restricting personal liberty and the rights of private citizens and organizations without raising a legal eyebrow.

Jack Balkin, a professor at Yale Law School, argued that the same lack of restraint applies if a president wants to initiate criminal investigations of his or her opponents and critics. In an email replying to my queries, Balkin wrote:

A president giving orders to an obedient Justice Department can exact revenge on political enemies and chill political opposition. It is not even necessary to send anyone to prison. For many people and organizations, the costs of defending a criminal investigation and prosecution can be ruinous and a sufficient deterrent. Moreover, if the public merely believed that the president was using the intelligence services and the I.R.S. to investigate political opponents, this could also chill opposition.

Balkin noted that after Watergate, “the Justice Department adopted internal guidelines to prevent presidents from abusing the prosecution power, but the president, as head of the executive branch, can direct his subordinates to alter these guidelines.”

Former President Trump, Balkin wrote,

has declared the press to be the enemy of the people and so such prosecutions might even be popular among his supporters. Second, a leader who wishes to amass power and avoid accountability benefits from making the press docile and afraid of retribution. Once again, even if the government never obtains a criminal conviction, the chilling effect on the press can be significant.

Elizabeth Goitein, senior director of the Liberty and National Security Program at N.Y.U.’s Brennan Center for Justice, is an expert on emergency powers delegated to the president. She replied by email to my questions concerning presidential powers:

The Brennan Center has identified more than 130 statutory provisions that may be invoked when the president declares a “national emergency.” The president has near-total discretion to declare such an emergency, and he may renew the declaration every year without limit.

One of the most worrisome statutory provisions, given Trump’s threats to deploy the military in large cities, Goitein continued, “is the Insurrection Act, which was intended to allow the president to deploy federal troops domestically to quell insurrections or civil unrest that overwhelms civilian authorities, or to enforce civil rights laws against obstruction.”

The law, she wrote,

is written in such broad and archaic terms (it was last amended 150 years ago) that it places few clear limits on the president’s ability to deploy troops to act as a domestic police force. And what limits can be inferred are effectively unenforceable, as the Supreme Court has held that the statute does not, on its face, permit judicial review of a president’s decision to deploy. Similarly, Congress has no role in approving deployments, leaving this powerful authority with no effective checks against abuse.

Goitein identified three other laws that are particularly concerning:

A provision of the Communications Act allows the president to shut down or take over radio communications facilities in a national emergency. If the president declares “a threat of war,” he can also shut down or take over wire communications facilities. Today, it could be interpreted to give the president control over U.S.-based internet traffic.

The International Emergency Economic Powers Act allows the president to freeze any asset (including those of Americans) or prevent any financial transaction with a designated person or entity (including Americans) if he deems it necessary to address a threat emanating at least partially from overseas.

One statute permits the Transportation Security Administration, during a national emergency, to carry out such duties and exercise such powers “relating to transportation during a national emergency” as the Secretary of Homeland Security shall prescribe. This provision is so vague and ill-defined, it could conceivably authorize an administration to exert compete control over domestic transportation — including shutting it down entirely — during a national emergency.

These concerns are held by both Democrats and Republicans.

Michael W. McConnell, who served as a George W. Bush appointee to the United States Court of Appeals for the 10th Circuit and is now director of the Stanford Constitutional Law Center, shared some of Goitein’s qualms, writing by email:

The Emergencies Act is dangerously sweeping and should be reconsidered. At the time it was passed, Congress retained a congressional veto, but congressional vetoes were subsequently declared unconstitutional. Now there is no mechanism for congressional override except by passage of ordinary legislation, which is subject to presidential veto and thus politically almost impossible.

One of Trump’s most startling proposals is to create a new category of federal employee known as Schedule F. It would eliminate civil service protections against arbitrary firing and other punishments for an estimated 50,000 or more elite federal workers. Their jobs would, in effect, become political patronage appointments. (Mr. Trump signed an executive order establishing Schedule F near the end of his presidency, but President Biden rescinded it.)

The Office of Personnel Management described Schedule F as directing federal agencies “to move potentially large swaths of career employees into a new ‘at will’ status that would purportedly strip them of civil service protection.”

Experts in federal employment law disagree over whether, in a second term, Trump would have the power to initiate a radical change like Schedule F without congressional approval.

Anne Joseph O’Connell, a law professor at Stanford whose research focuses on administrative law and the federal bureaucracy, wrote by email that Trump may have the authority to create a new Schedule F. But, she added, the scope of the change in traditional practices called for by the proposal may make it subject to judicial review.

“The statute provides the president broad authority to create exceptions to the civil service,” O’Connell wrote, but compared with earlier executive changes, “Schedule F would cover vastly more positions. I think such an enactment might run up against the major questions doctrine.”

In 2022, the Congressional Research Service described the major questions doctrine:

Congress frequently delegates authority to agencies to regulate particular aspects of society, in general or broad terms. However, in a number of decisions, the Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its action must be supported by clear congressional authorization.

Donald F. Kettl, a professor at the Lyndon B. Johnson School of Public Affairs at the University of Texas, has been working with fellow scholars seeking to prevent the creation of Schedule F. He wrote by email:

The one thing for certain is this: Any effort to recreate a Schedule F — and I’m told that conservative circles have a new executive order ready to go on Day 1 of a new Republican presidency — is certain to be challenged in the courts. The challenge would be on the grounds that creating a massive new effort would violate the letter and spirit of the Civil Service Reform Act of 1978.

Kettl agreed with O’Connell that

the consensus is that the president has the authority to create a Schedule F, under the same rules as applied to the other schedules. The big difference, of course, is that Schedule F could potentially apply to far more employees. Its proponents say it could apply to 50,000, to perhaps as many as 100,000 federal employees.

The court challenge to Schedule F, Kettl continued, would be based “on its scope and its effort to undo the civil service protections now being provided to tens of thousands (or many more) federal employees.”

The key issue in the case of Schedule F is how the Supreme Court would view such an extreme alteration of federal employment practices resulting from a unilateral presidential decision.

David Engstrom, who is also a law professor at Stanford, wrote by email:

As with so much else in American politics nowadays, it will be for courts to decide whether Schedule F runs afoul of the Civil Service Reform Act of 1978. There are good arguments either way. Trump’s executive order ran contrary to several decades of congressional actions creating a professional and independent civil service — a notable strike against longstanding case law sketching the limits of the president’s policy initiation power.

But, Engstrom added,

were the issue to go before courts in a second Trump administration, it is equally notable that Schedule F is consistent with a pillar of the Roberts court’s separation-of-powers jurisprudence, the “unitary executive” theory, which holds that the Constitution vests the president with extensive control over the workings of the executive branch. That broad, pro-president view will surely overhang legal challenges, particularly at the Supreme Court.

Erica Newland, counsel at Protect Democracy, disputed the claim that the Civil Service Reform Act of 1978 gives Trump the power to create a Schedule F, writing by email: “The C.S.R.A. doesn’t give Trump and his allies the power they say it does and we have 70 years of history to back that up.” Instead, “the C.S.R.A. in fact limits who Trump can exempt from hiring and firing protections.”

But, Newland quickly pointed out,

unlawfulness rarely stops Trump. Even if the courts ultimately strike down Schedule F, by issuing the executive order, Trump will send a message across government that personal loyalty to him — rather than the Constitution — is a job qualification. This is a classic authoritarian move.

In that political environment, she contended, “the first responsibility of those who manage government services — such as our food safety, aviation, and weather services — would be demonstrating fealty to Trump, not protecting the American people.”

Timothy Wu, a law professor at Columbia and a Times contributing Opinion writer, argued by email that the major constraints on Trump during a second term would not be legal but the power of public opinion, what Wu calls the “unwritten Constitution”: “Many of the things that Trump might want to do may not be explicitly barred by the written Constitution, enforced by courts, but by the unwritten Constitution, enforced by longstanding practice and the refusal of individuals to contravene it.”

Trump, Wu wrote, would

like to (1) direct specific U.S. prosecutors whom to indict (2) directly tell the U.S. Justice Department who to sue (3) have the U.S. military intervene domestically to suppress civil disorder (4) fire a far greater number of federal employees than has been the practice, and (5) rely on Senate-unconfirmed acting appointees. To various degrees these are all things within the theoretical limits of Article II and there are limited if any congressional restraints.

Wu argued that individual citizens would be very likely to defy some of Trump’s orders:

Take prosecutorial independence. The ordering by a president of an individual indictment breaks unwritten norms prevalent since the revolution. If Trump made the order, it would likely be refused. It might lead to a joint refusal among all prosecutors, a constitutional crisis, and possible congressional intervention to codify the norms of prosecutorial independence.

John Lawrence, chief of staff to Nancy Pelosi when she was speaker of the House, made the point that presidents cherish their autonomy:

Any executive action is subject to review by the courts or Congress, even if the president claims to be acting within these authorities. The problem would come if Trump decided to defy the courts, as did President Andrew Jackson when, disagreeing with a ruling against Georgia on the issue of Indian relocation, he dismissed Chief Justice John Marshall’s 1832 ruling with the admonition, “John Marshall has made his decision; now let him enforce it.”

The imprecision of many laws governing the nation’s chief executive would offer Trump the opportunity to enlarge his powers. One such technique would be to fill key posts with “acting” appointees, effectively circumventing the senatorial review that would come through the confirmation process.

Max Stier, founding president and chief executive of the Partnership for Public Service, wrote in an email that “Congress needs to both fix the confirmation process and address the large holes in the Federal Vacancies Reform Act of 1998.”

There are, Stier wrote,

a cascade of options available that could potentially be used to significantly extend the shelf life of an acting appointee. There is a nominal 210-day limit for acting officials, but the relevant legislation offers a number of ways that timeline can be extended, especially if formal nominations fail in the Senate. Under certain circumstances, an acting leader could serve in that role for more than 500 days under the law. Pushing the boundaries beyond that is untested and pursuing it would likely trigger legal challenges.

Newland (of Protect Democracy) argued that Trump could keep an acting appointee in office even longer than 500 days: “Although the law was intended to establish an overarching time limit on temporary appointments, the 210-day period can be extended, without a clear limit, as long as the president has nominated someone to permanently fill the vacant office.”

All told, Newland wrote, “the cumulative effect of the law’s generous grace periods could allow an acting official to serve for two years or more.”

Much of the focus on the prospect of a second Trump term has been on the willingness of his supporters to accept without qualm his more outrageous proposals and claims, including the “big lie” that Biden and his allies stole the 2020 election.

What the comments by legal and employment experts in this column suggest is that American democracy is itself ill equipped to fend off a president willing to adopt authoritarian tactics.

When he took office on Jan. 20, 2017, Trump had little or no preparation for his obligations as president. On Jan. 20, 2025, in contrast, a newly elected Trump would assume the presidency armed with voluminous research conducted by a virtual White House in waiting, dominated by a network of think tanks, including the Heritage Foundation, the Claremont Institute, the Center for Renewing America and the America First Policy Institute.

Together, these pro-Trump nonprofits have been drawing up legislation, collecting lists of loyal personnel, writing budgets and detailing executive orders designed to get the administration up and running from its first day.

The Heritage Foundation has organized Project 2025, a coalition of 84 state and national conservative groups, to pave “the way for an effective conservative administration based on four pillars: a policy agenda, Presidential Personnel Database, Presidential Administration Academy and playbook for the first 180 days of the next administration.”

The project has already published an 887-page document, “Mandate for Leadership 2025: The Conservative Promise,” with the goal of arming “an army of aligned, vetted, trained, and prepared conservatives to go to work on Day 1 to deconstruct the Administrative State.”

The first Trump term was both deeply alarming and a comedy of errors; a second Trump administration will be far more alarming, with many fewer errors.

[Thomas B. Edsall has been a contributor to the Times Opinion section since 2011. His column on strategic and demographic trends in American politics appears every Wednesday. He previously covered politics for The Washington Post. @edsall]

Source URL: