Who will stop Donald Trump’s drive for unchecked power?
Congress is inert, but a deft Supreme Court might contain him
IT WAS APRIL 28th 2017, the 99th day of his first administration, and President Donald Trump was frustrated. “It’s a very rough system, it’s an archaic system,” he vented to an interviewer about working with Congress to pass legislation. Avoiding this nuisance, he mused, would be “for the good of the nation”. Now that he is president for the second time, Mr Trump has decided to dispense with the archaic system. These first 100 days have been different from those of any modern president, who is usually desperate to secure some signature legislative achievement. Mr Trump has shown little interest in Congress, despite Republican control of both the House of Representatives and the Senate. He is wielding the imperial powers of the presidency to do what he likes: impose some of the highest tariff increases ever seen; shred the federal bureaucracy; and cudgel his adversaries. Yet despite a dearth of notable legislative accomplishments, Mr Trump’s first 100 days have hardly been a failure. They are arguably the most consequential of any modern president.
For Mr Trump, the executive branch is an extension of his own person. In an executive order on February 18th, he declared that “The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.” These opinions “are controlling on all employees in the conduct of their official duties”. The struggle over how far Mr Trump will get in realising such ambitions will roil American politics between now and the midterm elections in 2026.
The courts are adjudicating a glut of cases, which will take months to decide, and perhaps years to exhaust appeals. Lawsuits by Harvard University and law firms targeted by Mr Trump may offer the Supreme Court an opportunity to stop or limit Mr Trump’s attempt to coerce civil society. In the meantime the administration is howling over blocks imposed by district judges. In some cases it has been inching worryingly close to defying court orders.
Partisanship has so addled Congress that it is unable to defend even authorities it has long guarded jealously, like setting budgets. Over decades, Congress has voluntarily given away its institutional powers to oversee commerce, trade, federal agencies, even warfare. Republican members today vent their frustrations about the president in private, but their fear of losing the next primary election keeps them from going public. Respect for Congress’s ability to set laws is deteriorating: Mr Trump has decided to ignore a law to force the sale of TikTok, passed by large bipartisan majorities last year, on vague national-security grounds. The most serious blow may be yet to fall. Mr Trump has made clear that he intends to explicitly “impound”, or not spend, funds that Congress has allocated by law if they conflict with his policy priorities. If successful, this would obliterate Congress’s power of the purse.
With the legislative branch inert, the burden of checking Mr Trump has fallen to the courts. The next months will require deft mastery of politics by the Supreme Court’s chief justice, John Roberts. Mr Trump is “angling for a showdown with the Supreme Court”, says Lee Drutman, a political scientist. A sweeping decision by the high court involving a particularly unsympathetic plaintiff, or one that provokes a sharp ideological dissent from Trump-aligned justices, might push Mr Trump to ignore both the letter and the spirit of the court’s ruling. That would unambiguously puncture the constitution.
The chief justice does not appear to be seeking confrontation, but the court has scheduled oral arguments in May about the administration’s attempt to end birthright citizenship. It is hard to imagine the judgment going Mr Trump’s way, since the constitution says, point blank, that “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The high court is likely to consider Mr Trump’s other actions through the so-called emergency docket. If the administration continues to ignore district judges, Chief Justice Roberts’s polite and deferential language might take on a harder edge. Americans venerate their constitution, but its authority and limitations are sustained by collective belief. In the face of a rogue executive, the constitution’s checks could become as fragile as the parchment it was written on. Even the law-enforcement officers available to enforce the orders of judges, the federal court marshals, report to the Department of Justice (DoJ).
Mr Trump’s centralisation of power in the executive branch, to the detriment of the legislative and judicial branches, is so consequential that it is easy to miss another, potentially even more important, development: the abolition of checks and balances within the executive branch itself. The president’s executive orders had previously been reviewed by the DoJ’s Office of Legal Counsel (OLC), to ensure compliance with existing laws. Mr Trump has largely cut out the OLC.
“They have self-consciously and successfully eliminated all internal executive branch legal and norm-based constraints on Trump’s will, period,” says Jack Goldsmith, a Harvard law professor who led the office under George W. Bush. The civil service is not just going through personnel cuts but also loyalty tests. Nowhere is politicisation more worrying than in law-enforcement agencies. “What we’ve seen in the Department of Justice is the wholesale elimination of its independence,” says Paul Rosenzweig, who also worked in the Bush administration. The post-Watergate norm of an arm’s-length DoJ is over.
Mr Trump’s actions risk creating a “two-track legal system,” says Aziz Huq, a law professor at the University of Chicago, one where property rights are enforced as usual by the courts except “where the government decides they can pull this switch, a trap door opens beneath you, and you vanish into this realm in which you’re at the whim of powerful political actors.” This is the model of the “dual state” often used to describe China and Singapore.
Given that Republicans will enjoy their majorities until at least 2027, there is little chance that Congress will revive itself before then. That would only change if Mr Trump were to face broad protests and suffer a dramatic decline in approval because of acts of economic self-harm (like resumption of his “reciprocal tariffs”). There are few possible paths for self-correction within the executive branch itself, given the fixed will of the president. The defence of the republic will fall in large measure to Chief Justice Roberts and his colleagues, armed with the power of the pen and faith in the separation of powers. ■