Yes, the Law Can Still Constrain Trump
Donald Trump wasted little time after the election in claiming an “unprecedented and powerful mandate” and floating a series of extreme proposals with varying degrees of legal dubiousness. The president-elect has already winkingly suggested that he might stay in office for an unconstitutional third term, indicated that he intends to end the Constitution’s guarantee of birthright citizenship, and said that he plans to deport U.S. citizens. If the mood on the right is triumphant, the atmosphere among those opposed to Trump has been despairing, as though nothing can be done to hold him back from what he has planned. A representative headline in Slate read “Is the Law for Suckers, Now?”
It’s tempting to conclude that the answer is yes. The country elected a man who has been indicted four times, essentially wiping away any chance that he might face criminal accountability for his effort to hold on to power after losing reelection in 2020. The Supreme Court, in issuing its shocking immunity ruling this summer, seems newly on board with the idea that the chief executive can more or less do whatever he likes. What do legal restrictions and constitutional processes matter in the face of a politics that has lost any semblance of reason?
A great deal, in fact. The country has come a long way from the starry-eyed early days of the Russia investigation, when Trump’s opponents purchased votive candles printed with Special Counsel Robert Mueller’s face on them and dreamed of a criminal prosecution that might end Trump’s presidency. Sure, the law is not a magic wand to save America—but neither is it entirely useless. Acknowledging the threat that Trump poses to American democracy does not require accepting that he is unbound by law. On the contrary, taking the risk seriously requires taking seriously the legal and political mechanisms available to prevent the worst of Trump’s intended abuses.
Those mechanisms are available partly because of Trump’s own shortcomings. As would-be authoritarians go, Trump is often lazy, prone to whims, easily distracted, and poorly organized, and each of those shortcomings can create legal and political weaknesses for his administration. The New York Times columnist Jamelle Bouie argued shortly following Trump’s reelection that “there is a large gap between a stated intention and an accomplished fact. And it is within that space that politics happens.”
[Read: No, Trump can’t just ‘dismiss’ the Senate]
The country has already caught a glimpse of how this process can play out, as Trump has begun to assemble his Cabinet. Within weeks of the election, the vision of a victorious, crusading Trump that his allies promoted swiftly crumbled into something a lot more familiar: a chaotic, grinding slog. That may not sound particularly encouraging, but for those who care about democracy, it’s actually welcome news.
The first hint of breakdown emerged out of the constitutional dynamics between the executive and legislative branches. The Republican Party secured a less-than-overwhelming four-seat majority in the Senate, meaning that the new administration can lose only a handful of votes for confirming Trump’s Cabinet nominees. Briefly, it seemed that Trump’s team had dreamed up a solution in order to jam through the president-elect’s more controversial nominees: force the Senate into a recess by inexcusably contorting the Constitution, then use the president’s ability to fill Cabinet slots unilaterally when the Senate is gone.
The idea was disturbing. It recalled the monarchical power to dissolve Parliament—and, in that sense, spoke to an absolutist vision of presidential authority entirely unchecked by the legislature or any competing center of power. But the incoming administration appears to have backed away from the scheme after Ed Whelan, a fixture of the conservative legal movement, raised alarm about the scheme and voiced doubts about its constitutionality. One of Trump’s most controversial and least-supported nominees, former Representative Matt Gaetz, has since withdrawn from consideration rather than hope for a recess appointment.
Even if Trump’s team decides to pull the trigger on the plan at a future date, they will face no end of difficulty in practice. To begin with, the scheme would require the House to recess first, but the GOP’s House majority is extremely tight, and there is no guarantee that Speaker Mike Johnson could secure the votes to send his chamber home in service of such a scheme, even if he wanted to. In the weeks since Whelan first warned against the idea, legal academics of all political stripes have begun assembling a range of compelling arguments as to why the plan would be unconstitutional—arguments that a Trump administration would have to face down in court. Even if such litigation makes it up to a potentially sympathetic Supreme Court, and even if the Court is sympathetic, Trump will confront the problem that three of the conservative justices previously signed on to an opinion holding that a president may only fill vacancies during a recess that arose during the recess itself, significantly limiting this immense claim of power.
None of this is to say that the House, the Senate, or a majority of the justices are pure and principled actors, or that respect for the text of the Constitution will be enough to stiffen their spines against Trump. But the combination of public outrage, the existence of strong legal arguments against Trump’s actions, and the total lack of strong legal arguments for them is potentially significant. Each element makes going along with him a little more difficult for Congress and the Court—especially because, even if many members of the public have given up on thinking of the Court as anything more than a political body, some of the justices still want to be able to think of themselves as fair and impartial jurists. And the more difficulty that Trump encounters, the more likely that he shrugs his shoulders and moves on to the next whim.
The same is true when it comes to the specific policies that Trump has promised to implement during his second term, many of them arguably or even blatantly illegal. Dara Lind, of the American Immigration Council, has pointed out that anxious rhetoric around Trump’s promised mass deportations often elides the challenging and perhaps insurmountable “logistical realities” of organizing and executing such an incredibly complex operation. Litigation is part of those logistical realities, too. Consider Trump’s promise to end the Fourteenth Amendment’s guarantee of birthright citizenship, which will reportedly involve an executive order directing the federal government not to issue Social Security numbers to babies born on U.S. soil to parents who are neither citizens nor green-card holders. How is the Social Security Administration meant to ascertain the citizenship of an infant’s parents? What happens when that agency and others are hit with a wave of lawsuits from organizations challenging the order? A signature on an executive order is a very different thing than actually putting a policy into effect.
[Read: The potential backlash to Trump unbound]
It’s difficult to gauge what the litigation might look like in advance. But the first Trump administration offers instructive examples. Consider the case of the travel ban during the first Trump administration: Shortly after taking office in 2017, Trump released an executive order barring citizens of seven majority-Muslim countries from entering the United States. A flood of litigation ensued as lawyers rushed to airports around the country to represent panicked travelers. Courts blocked the order. And though Trump whined, the administration complied—at least that time around. After the Supreme Court finally issued a ruling upholding the constitutionality of the proclamation, more than a year later, the version of the ban that ultimately went into place was significantly watered-down and incorporated a number of exceptions.
The final ban was, to be clear, stupid, pointless, and cruel, and the Court’s decision was studiously obtuse as to the hateful intentions behind the policy. But the litigation made a difference in allowing people to enter the country who otherwise would have been stranded—not all of them, and not enough of them, but some. For those people, that difference mattered.
This is not a stirring tale of the majesty of law above all. It is, however, a story about the usefulness of the legal process as a means of throwing sand in the gears of the machinery of cruelty. And the travel ban was on far firmer legal ground than many of the proposals being floated for Trump’s second term.
Trump has always been defined by his striking lack of curiosity about the government he sought to lead. To the extent that the 47th president is able to convince the country that he has the authority to carry out his political program as a sort of elected dictator, that will be another victory for Trump’s style of empty know-nothingism. In contrast, recognizing why Trump’s power isn’t unlimited requires a deeper understanding of the mechanisms by which the work of government is actually carried out—exactly the understanding to which Trump’s own apathy is ideologically opposed. The more Americans know about their system of government and the laws that shape it, the better they will be equipped to defend their democracy.