Noah Feldman
Right now, Democrats are asking despairingly what, if anything, can constrain Donald Trump from doing whatever he wants in his second term. And Republicans may be assuming optimistically that, with the Senate and the House in his pocket, there will be little to stand in the president-elect’s way. I have some good news and some bad news for each group.
Democracy means the rule of the people, and the people have spoken in electing Trump. Constitutional democracy means democracy with constraints. And the constraints we have now are weaker than they have ever been. The classic limits on a president’s domestic power include Congress, the courts, fear of impeachment, fear of prosecution, government bureaucracy, and the financial markets, with press and public opinion somewhere in the backdrop. Nearly all of these, except the markets, are substantially weaker for Trump than they have been for any other modern second-term president. None, however, has been absolutely eliminated, and all will matter for shaping Trump’s presidency.
What follows is a primer on Trump’s limits — which is also, at a deeper level, an account of what constitutional democracy looks like at this particularly delicate moment in the history of the American republic.
The Legislature
The legislative branch is the obvious place to start. Republicans will have narrow majorities in the Senate and the House, a similar situation to the start of Trump’s first term in 2017. And any president needs Congress to pass major legislation.
But Trump ran for office without proposing any specific, major legislative program that would require congressional approval. If he decides to proceed mostly through executive orders, it would limit Congress’ leverage in a second Trump term.
Some of his suggestions, like eliminating the income tax, would certainly demand both houses of Congress be on board, and it could be difficult to get their acquiescence given the massive fiscal shortfalls such a plan would create. But Trump may never have really intended to make such a transformational step. And he will have no trouble getting majorities in both houses to approve tax cuts.
You might think that Trump’s tariffs would require legislative action. Congress, not the president, has the constitutional right to set import duties. But Congress gave away many of its powers on tariffs years ago. A range of laws authorize the president to impose tariffs when he finds various conditions to be met. And according to Trump’s last administration, under the International Emergency Economic Powers Act of 1977, the president can invoke emergency powers to impose tariffs entirely on his own. Congress could reverse those tariffs, but only by a two-thirds majority in both houses. It’s unclear whether the IEEPA could be used to impose tariffs on, say, Mexico. But when Richard Nixon imposed a tariff using similar emergency powers under a predecessor statute, an appeals courts upheld the action.
And it’s worth noting that the incoming Congress will be substantially more MAGA-oriented than the Republican Congress of 2017 to 2019. There may be much more support for Trump’s most extreme actions now than in the past. Indeed, rather than checking Trump, some in Congress may want to press Trump to be even more radical than he would choose to be on his own — for instance, by passing a national abortion ban that Trump has said he would not support.
Congress, of course, also has some oversight power over executive branch actions. But it’s unlikely to use those powers to investigate the Trump administration if Republicans retain their majorities. Regardless, oversight only works if anyone cares what congressional investigations uncover. Trump doesn’t care, and very probably, neither does a majority of the public.
Impeachment is the other constitutional tool that the framers gave to Congress to constrain a president who blatantly violates the rule of law. Yet impeachment, I am sorry to say, is now effectively dead as a meaningful tool, at least with regard to Trump. Trump was impeached twice — first for his attempt to get Ukraine to target Joe Biden before the 2020 election and second for his role in the violence of Jan. 6, 2021. Unashamed, Trump fought back and twice avoided removal by the Senate.
Trump’s reelection strongly indicates that most of the American public doesn’t care about impeachment where Trump is concerned. Ask yourself: if Democrats win the House, what conduct would merit a third impeachment — and what conduct would at this point shock the public? Maybe there’s something Trump could do that would ignite righteous indignation among his supporters. But at this point, it’s hard to imagine what that would be.
The Courts
According to the design of the Constitution, the judiciary is the other branch that’s supposed to check the president. And in a second Trump term, the courts will perhaps the best avenue to limit Trump’s wilder impulses.
In Trump’s first term, the courts did reasonably well at constraining his actions when they were demonstrably in violation of 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. He was blocked from corrupting the US census, for example, and from rescinding the Deferred Action for Childhood Arrivals, or DACA, program.
It’s true that Trump later went on to appoint a massive number of very conservative judges to the federal bench, and that in at least some courtrooms, there will now be less resistance to Trump’s more extreme actions. However, at the Supreme Court, despite Trump’s three appointments, there are still at least three conservative justices who would probably be prepared to join the court’s liberals to block presidential actions that are clearly lawless — Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Amy Coney Barrett.
The other way the legal system can limit a president’s behavior is if he fears that his associates might be criminally prosecuted — or that he himself might be prosecuted after leaving office. But it seems fair to say that Trump’s Department of Justice will not be investigating any part of his administration for overreach. That was obvious even before he announced plans to nominate Florida Representative Matt Gaetz to be attorney general.
As for Trump himself, he has now lived through what most ex-presidents would have considered the nightmare scenario of being in criminal jeopardy. He responded by weaponizing the prosecutions against him and winning reelection — as well as winning a major grant of presidential immunity from the Supreme Court. Together, those 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 serve any jail time in connection with them.) The upshot is that he can now be fairly unconcerned about further criminal prosecution.
Civil Servants
The career civil servants who make the government work on a day-to-day basis — the people whom Trump has denounced 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 were working to hinder Trump’s policies from within the administration with the protection of their lifetime appointments.
Certainly, Trump believes that his efficacy was limited by the bureaucracy in his first term. That’s why he has a plan to fire many senior civil servants and presumably put the fear of God into whomever he chooses to keep on.
That plan goes by the name of Schedule F. According to the Civil Service Act of 1978, civil service protections don’t extend to any federal employee “whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character.” Late in his first term, Trump issued an executive order that created an authority to reclassify some civil servants as belonging to this legal category, placing them under the Schedule F rubric. The plan was then to fire them if they didn’t toe the Trump line. No one knows exactly how many people Trump planned to reclassify, because in the end, the provision was never exercised.
Now Trump has promised to bring back Schedule F. If he does, there will be a major legal fight about it. It seems likely that, if Trump wins that fight, some meaningful number of key career civil servants will choose to resign. That would be principled, but would also ensure that they would no longer be in a position to limit any especially reckless or lawless actions.
One potential constraint on Trump would be that, if he were to lose a huge number of civil servants, running the government would become difficult — thus making it harder to enact any policies of any kind. But a breakdown in government efficacy is hardly something to root for.
The Media, the Markets and the Masses
Now that we’ve exhausted the main governmental mechanisms for restraining Trump, what’s left are the nongovernmental institutions like the press, the markets and public opinion.
There has never been a president who was less constrained by what the press has to say about him. The underlying reasons for his ability to escape the consequences of press condemnation are complex and manifold. They started with his celebrity status; extended to the country’s political polarization; and were consolidated by social media and the rise of channels like YouTube and podcasts, which together have the capacity to cut out the legacy press from the formation of public opinion.
At a personal level, Trump likely doesn’t enjoy being attacked by major media outlets. Perhaps some news stories would be sufficiently heartrending to affect policy, like when 2018 reporting about family separations at the border appeared to spur the administration to roll back that policy. But it will be hard to see how anyone could think the press will meaningfully limit his actions. He can govern without Fox News.
Trump does care about what the financial markets think of his policies, though. What’s more, the markets pretty clearly also believe that Trump is listening. That’s the only rational explanation for why the markets would respond so positively to Trump’s reelection when his most consistent economic messages have been self-destructive tariffs and wanting to meddle with the Fed. Those changes would scare the markets if investors truly believed Trump would achieve them. Yet if Trump is just floating ideas, and willing to reverse course in the face of market jitters, then there’s less for investors to worry about.
On the one hand, it’s a good thing the markets are capable of checking some of Trump’s more dangerous ideas. On the other, financial markets aren’t designed to preserve democratic institutions, and care about democracy only insofar as it provides a stable set of structures to facilitate the accumulation of capital. As we know from the example of China, capital can be deployed — and grow — in the absence of democracy. A democracy that’s relying on the financial markets to keep the president in check is a democracy that has squandered most of the mechanisms the framers put in place to preserve it.
Ultimately, then, we come to public opinion. The sad, sad truth is that the public can only constrain a president if the public possesses what the framers called political virtue: the values, understanding, and attention necessary to make good judgments. Richard Nixon was a second-term president when he resigned in the face of his anticipated shame at being impeached and perhaps tried criminally. That shame was connected to his perception that the public — and members of his own party — were horrified by his conduct in the Watergate scandal.
Where the public no longer is capable of feeling shock or horror, no possibility of shame exists for any president. Of course, Trump himself seems remarkably free of shame; but that is merely incidental in a world where the public can’t be counted on to think he should be ashamed.
The authors of the US Constitution did not want their fragile new republic to rest on the private virtues of public figures. That’s why they designed a system of checks and balances. We can’t keep eroding those checks and expect our democracy to come through unscathed.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”
