[ I am your warrior, I am your justice, Donald Trump told the
crowd. And for those who have been wronged and betrayed, I am your
retribution. The first Trump term was deeply alarming, a second Trump
one will be far more alarming, with many fewer errors]
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HOW MUCH CAN TRUMP 2.0 GET AWAY WITH?  
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Thomas B. Edsall
December 20, 2023
New York Times
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_ I am your warrior, I am your justice, Donald Trump told the crowd.
And for those who have been wronged and betrayed, I am your
retribution. The first Trump term was deeply alarming, a second Trump
one will be far more alarming, with many fewer errors _

Doug Mills/The New York Times,

 

“I am your warrior, I am your justice,” Donald Trump told
[[link removed]] 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
[[link removed]], 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 [[link removed]], 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
[[link removed]], 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
[[link removed]] 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
[[link removed]],
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
[[link removed]], 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
[[link removed]].
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
[[link removed].] 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
[[link removed]], 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
[[link removed]].”

In 2022, the Congressional Research Service
[[link removed]] 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 [[link removed]], 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
[[link removed]], 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 [[link removed]],
counsel at Protect Democracy, disputed the claim that the Civil
Service Reform Act of 1978
[[link removed]] 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 [[link removed]], 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
[[link removed]],
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
[[link removed]],
“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 [[link removed]], 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
[[link removed]].”

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
[[link removed]] for
acting officials, but the relevant legislation offers a number of
ways
[[link removed]] 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
[[link removed]].”

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
[[link removed]], 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
[[link removed]],”
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
[[link removed]]]_

* Donald Trump
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