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Congress could be too feeble to counter Trump’s second-term plans

By Michael Macagnone, Ryan Tarinelli, CQ-Roll Call
Published: January 15, 2024, 6:00am

Former President Donald Trump has laid out broad plans to sculpt the government in his own image in a potential second term as president, and members of Congress may have little ability, or desire, to stop him.

Trump would inherit an executive branch that’s been strengthened over the decades under both parties, according to congressional experts, and has made statements on the presidential campaign trail that he would remake the federal government in a variety of ways.

Among those stated plans: changing the immigration system, making huge sections of the federal workforce removable at will, using the military for civilian law enforcement and turning the Justice Department toward his perceived enemies.

Congress has the power to pass legislation to counter Trump’s impulses or limit presidential power through appropriations bills, pursue lawsuits to curb his actions or conduct oversight hearings that focus public attention on the fallout from presidential decisions.

But any law would have to overcome partisan division to be enacted under President Joe Biden. Any legislation after that would run into a likely veto under a future President Trump, or face his penchant for avoiding congressional limitations. The courts proved to be an uncertain way to counter Trump when in office, and other levers like withholding nominations could be less effective.

Trump’s rhetoric about testing the bounds of presidential power has not torpedoed his spot as the leading candidate to secure the 2024 Republican presidential nomination.

A reelected Trump would bring with him the experience from his first term, and Trump critics and political observers predict that his lawyers and advisors will be less likely to stand in the way of his plans.

Josh Chafetz, a law professor at Georgetown University Law Center who has written a book about congressional power, said he wasn’t sure that there would be many institutional safeguards in the administrative branch to prevent abuse. Last time, lawyers and some other advisors worked to curb some of Trump’s impulses.

“This time around, if he is the president again, he has enough people around him who are sort of hardcore Trumpists, at that point it is sort of hard to know what the guardrails would be,” Chafetz said.

Matthew Glassman, senior fellow at the Government Affairs Institute at Georgetown University, said any effort from Congress to reel in the power of the executive would have to reverse decades of steps in the other direction, harkening back to the era after the Sept. 11 terror attacks.

Glassman said use of executive power can feel like “the worst thing in the world” for the opposition party in Congress — at least until their candidate takes the reins.

“But then, like, the tools of it are very useful to getting your own ends,” he said. “And the loser here in all this is Congress, right? Because we keep having partisans on both sides sort of augment the powers of the presidency in some ways.”

“I joke with people sometimes, what we’re doing is we’re on a bipartisan basis building an elected monarchy by continually augmenting the presidency with more and more power and never taking it away,” Glassman said.

Themes of revenge

Trump, who is facing dozens of charges spread across four separate criminal cases, has touched on themes of revenge as he makes his comeback bid for the White House. For example, on the campaign trail, Trump has vowed to turn the Justice Department against those prosecuting him, levied criticism at the “deep state” and tenure protections for federal workers.

In an interview with Univision last year, Trump said “they’ve released the genie out of the box,” and that he may direct DOJ officials to take action against his opponents.

“If I happen to be president and I see somebody who’s doing well and beating me very badly, I say, ‘Go down and indict them.’ They’d be out of business. They’d be out of the election,” Trump said.

Last year, Trump told supporters that he would be their retribution, and during a November speech he pledged to “root out the communists, Marxists, fascists and the radical-left thugs.”

Trump has reportedly prepared to revitalize a plan to “reschedule” thousands of federal employees so they would no longer have tenure protections and allow him to remove them at will.

And Trump has said he wants to install a new “civil service test demonstrating an understanding of our constitutional limited government” that would “put unelected bureaucrats back in their place.”

“The threat from outside forces is far less sinister, dangerous and grave than the threat from within. Our threat is from within,” Trump said at the rally.

Democrats in Congress have raised alarm bells over Trump’s rhetoric, but some acknowledge they have no clear path to preemptively blunt Trump’s plans through legislation.

That’s the case largely because of the close split in the Senate and a House under Republican control, a lower-chamber majority conference that’s shown no signs of pulling away from Trump. Meanwhile, members of House Republican leadership have endorsed Trump’s reelection bid.

Sen. Tim Kaine, D-Va., one of the sponsors of a bill to provide broader tenure protections to the federal workforce, said he’s had trouble getting Republicans to sign onto the bill, citing Republicans’ feeling of loyalty to Trump. He pointed out that administrative rules to protect the federal workforce could easily be undone during a second Trump term.

“A lot of Republicans are loyal to Donald Trump. But federal employees being judged on loyalty to a president rather than on their competence, that’s foolish,” Kaine said. “Every American should want the federal workforce to be, you know, hired and then supervised based on their competence, not about whether they’re loyal to the president.”

Kaine pointed to the National Defense Authorization Act as one possible route to pass the legislation. The House-passed version of the bill even had an amendment from Rep. Gerald E. Connolly, D-Va., to do just that, which did not survive in the final conference language in the final version passed in December.

Kaine said he was hopeful that as the general election approaches, congressional Republicans wary of Trump may come together to pass legislation. He also said the best possibility of legislation could come in the months following Trump’s election but before his inauguration. But that’s a tall order for Republicans to go against the leader of their party.

Partisan divide

Congress has come together a few times on bipartisan legislation in response to Trump. In 2022, Congress passed a law changing how the Electoral College is counted in response to the attack on the Capitol on Jan. 6, 2021, and Trump’s effort to overturn his loss in the 2020 election.

More recently, Congress passed a provision in the National Defense Authorization Act that prevents the president from spending funds to withdraw from NATO unless Congress passes authorization to withdraw from the alliance. Trump has been a vocal critic of NATO.

Rep. Mike Gallagher, R-Wis., sponsored a similar version of the provision in 2017 in response to Trump’s public musing about leaving the pact. After the bill passed as part of the NDAA in December, Gallagher said he was glad the provision made it into law but doesn’t see a need to address other statements by Trump.

“I don’t think we’re going to spend time next year, like proactively legislating counters to hypotheticals that people may be concerned about with regard to Trump,” Gallagher said. “I mean, I’m sure like the Democrats will hyperventilate about a lot of it, but I just think it’s all smoke.”

Rep. Jamie Raskin of Maryland, the top Democrat on the House Oversight and Accountability Committee, pointed out that Republicans control the House floor.

“We of course are not in control of the House of Representatives. The House is in control of a Trump sycophant, Mike Johnson,” Raskin said. “The Republicans undoubtedly will try to stop any preemptive or precautionary moves counter to an authoritarian Trump presidency. So yeah, so that makes it tough.”

Rep. Steven Horsford, D-Nev., chairman of the Congressional Black Caucus, expressed a similar perspective.

Asked if there is anything congressional Democrats could do before the election to stop his agenda, he responded: “Not with the extreme faction controlling the House that’s hell-bent on protecting the former president, despite all the indictments and charges that are against him.”

Appropriations

If Trump wins another term, he could veto legislation that would curtail his power but that doesn’t mean Congress and Democrats couldn’t try to force his hand through policy riders on spending bills. Chafetz said much of federal law, including law enforcement, is left up to the executive branch and Congress would “run up to the limits of what the law in general is.”

“They could try things like appropriation riders that could have some efficacy, and it is not entirely clear to me that the Trump administration would honor those riders or couldn’t find a way around them,” Chafetz said.

But that path is unclear. In 2019 following a government shutdown over border wall funding, Trump declared a national emergency to move $6 billion in military construction funding to create a border wall. Then-Speaker Nancy Pelosi, D-Calif., led a court challenge to the move, arguing Trump violated Congress’ power of the purse.

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A panel of U.S. Court of Appeals for the D.C. Circuit ultimately agreed with Pelosi in a 2020 decision, writing that spending “requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House’s key out of its hands.”

However, the Supreme Court ruled the case moot, effectively erasing that ruling in 2021 after the Biden administration reversed Trump’s border policy. Chafetz pointed out that the Supreme Court may not have ruled in favor of the House in that case or in others surrounding future efforts to rein Trump in.

In recent years the conservative-controlled court has rolled back restrictions that Congress placed on the executive branch, Chafetz said, such as the 2020 decision Seila Law v. Consumer Financial Protection Bureau, which made the CFPB’s director removable by the president.

Trump also spent much of his first term with “acting” members of his Cabinet, avoiding another congressional check on the presidency. After Kirstjen Nielsen resigned from the Department of Homeland Security in 2019, Trump went through a series of acting secretaries, many of whom faced legal challenges.

Dictator for a day

During a Fox News town hall last year, Trump said he would be a dictator only on “day one” of a second term, telling the crowd, “I want to close the border, and I want to drill, drill, drill.” Trump has reiterated the sentiment in other statements, saying he intends to make big changes to energy and immigration policy on the first day of a second term.

Campaigning in Iowa last year, Trump called New York and Chicago “crime dens” and said he may order the deployment of U.S. military to enforce the law there.

Few of Trump’s statements have made an impact within his party.

Retiring Rep. Ken Buck, R-Colo., who opposed an effort from fellow Republicans to challenge the results of the 2020 election during electoral vote counting in 2021, said it may be a little early to talk about Congress taking action to stop a presidential candidate’s stated plans.

“He has made a lot of statements in the past that the people around him have moderated a lot of, whether this is instincts or just sort of top-of-mind statements he is not thinking through,” Buck said. “I think it’s early to start talking about reacting to one candidate in a primary situation.”

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