A Democracy In Winter: What Trump Can and Cannot Do

As Trump’s outlandish list of nominees and sweeping declarations of what he will do on “Day 1” (a phrase borrowed from Ronald Reagan during the hostage crisis) continue, there is a lot of anxiety in the air as people count down to the day he takes office. The American people who wanted a different outcome are   scared, and I completely understand the fear. As someone living in California, I hesitate to catastrophize too much, but I understand that our state is incredibly lucky. With that in mind, I began looking at all the things the president can and cannot do from the comparatively weakened seat of the executive branch.

Keep in mind that when the founding fathers crafted our country’s laws and customs within the constitution, they were fresh off a war with a king. Their fears are clearly outlined in our Bill of Rights- violent retaliation for their faith, their land being taken from them, their home being overtaken by armies, and their rights to defend themselves against tyranny being taken away. With that said, it is important to remember that the executive branch is weaker than the other branches, by design. Sure there are executive orders, but what can be achieved by the executive orders is limited because so much of what a President wants to do needs approval through congress.

When the Republican party was declared the majority in the senate, I know many people were afraid that Trump would be able to get everything he wanted during his term. Here again, it is important to remember a few things. The first is that some things require a supermajority, and he does not have that. The Republicans hold the majority by a very small margin. For another, I have always enjoyed that each Congress gets its own number, because each new congressional lineup has a chance to define themselves and their role. The Senate in particular has a history of seeing itself as an exclusive club, able to hold power and send a message. This week, my plans to tell you what Trump can and cannot do got turned on a dime with the appointment of John Thune as Senate Majority Leader. Thune was not Trump’s favorite to win the position, and he was chosen for the job over other candidates who hold greater favor with the President-elect. I go over this in my mini post which you can find here for reference, but essentially, this appointment, I believe, was a message from the Republicans in the Senate that Trump will be President, but that his instinct for loyalty over qualifications will not be indulged. Thune is a qualified and serious man, who is committed to country over party, if Senators from both major parties are to be believed. Given that, here is, in the best of my estimation, a list of Trump’s goals and whether or not he can accomplish them.

Donald Trump seems very insistent that his cabinet nominees be confirmed, implying recess appointments. He has also said that he doesn’t want the new Congress in session until his first day in office. Without a two-thirds majority, Donald Trump will not be able to change the rules of the legislative branch that are laid out in the constitution. Without the approval of the Senate, he will not be able to change the rules of the Senate. Given the protective nature that Senators feel of their office, and the chamber they serve, the second is unlikely. The first is impossible. Republicans do not have a two-thirds majority in the Senate, and I believe the appointment of Thune solidifies what we saw on election night- even among the Republicans in Congress, it is not a foregone conclusion that they are all in sympathy with Trump’s agenda. To provide specifics, I believe it is unlikely that Hegseth will be able to be confirmed. If a recess appointment is taken advantage of, Trump could face problems in the senate. Recess appointments exist because there was a time when the only option was to get to Washington D.C. by train or carriage, and they must come with the assumption that the appointment would be confirmed if the Senate was able to gather in session. Gaetz, while repulsive in my opinion, is at the very least an attorney, but Hegseth being so obviously unqualified will pose a problem if Trump decides to make the case of presumed confirmation regarding a recess appointment. 

As I pointed out tangentially regarding Senate rules, Donald Trump cannot change the Constitution. Anything regarding Constitutional amendments or changes requires the supermajority that he just will not get. This is important to remember, because one of the scarier actions he has spoken about taking includes turning the military on “the enemy within.” While he is the Commander in Chief of the armed forces, enlisted citizens and officers take their oaths to the Constitution of the United States, not the President. This means while theoretically possible, it is unlikely to be an effective move with Generals Kelly and Mathis speaking up about their concerns about Trump. It is also unlikely that his advisors will be eager to entertain such a notion, even with the list of Pentagon officials Trump plans to fire. These organizations are beholden to the Institution and structure above all else. I realize it sounds as though I am taking a lot of faith, but we need only look toward treaty law and compliance for the root of my optimism. To put it simply, domestic norms and structure have just as much to do with treaty compliance as international compliance. I believe that when it comes to men and women who have been in service to these institutions long enough to be in high command roles, the same principles will apply. They have been there a lot longer than Trump, and most, if not all, are committed to being there long after he is gone. For these reasons, Trump will not be able to hold military power over his own constituents at his beck and call.

Donald Trump is also promising to target career civil service members, firing them en masse. While this is theoretically possible, this will be costly, create a burden for unemployment, inspire demands for job creation, and impact the economy and federal budget in ways that cannot be comprehended at this juncture. Federal budget changes require approval from Congress, and I believe that when Donald Trump inevitably ends up with a Cabinet that is confirmable, as opposed to sycophantic, they will also tell him that the move is ill-advised from an economic standpoint. 

Another of Trump’s bizarre claims is that Governors cannot do anything without consulting the President. This is most definitely not true. California, for example, has kept several key aspects of neonatal health care, contraceptive care, women’s health, LGBTQIA+ rights, drug use, and many other hot button issues legal and treatable under Presidents who have been more restrictive. The states have a lot of constitutional power, and many states have either Democrat or more traditionally Republican governors. This also ties back to the Constitution, as the 10th amendment gives powers not laid out in the Constitution to the states. Trump will have no possible path to changing the Constitution.

A lot of panic has spread through trans youth that have concerns about funding for the support they receive at school, and the concern is palpable amongst parents as well. This is likely because Trump has promised to roll back funding to public schools that teach critical race theory, gender and queer theory, and offer support to trans, nonbinary, and queer students. This will not be feasible. Changing funding to public schools requires approval from congress to amend the federal budget for education, and taking funding away from public schools arbitrarily because the administration suspects that support is being given will not pass. Too many Senators have worked hand in hand on bipartisan legislation supporting education, and once again, permitting a sweeping budget change will most likely not be realistic from a Senate that just brought an incoming President to heel. 

I’ll be talking more about the Bill that would have allowed this, but the President will not be able to create a mechanism for punishing nonprofits and political activist groups. Senators, and this Senate in particular, have declared their interest in working for the country, not one man, and the Congress as a whole shows little interest in first amendment violations. The House just voted to block the Bill in question, H.R. 9495, which would have allowed for the punitive action, and another is unlikely to pass even if something similar comes to the House floor. 

Ironically for those who voted for Trump because of his immigration and mass deportation policies, his mass deportation plan will not be achievable, mostly because it would involve too many entities who have no legal obligation to comply with the Executive Branch. State police forces are not, strictly speaking, controlled by the federal government. The FBI is a federal law enforcement agency, but close contact between FBI Directors and Presidents is forbidden. Comey famously expressed concerns previously about Trump’s violation of the proper procedures for contacting the FBI, and the kind of cooperation and possible collusion this kind of mass deportation would require is one of the reasons why. State police forces would most likely have to be involved in transporting the massive numbers of people, and they are beholden to their state, not the federal government. They can be required to turn matters over to federal agents, but the question of whether any one law enforcement agency has the resources required to pull off transportation and deportation on this level still stands. It is much more complicated than Donald Trump grasps to deport the estimated nearly 11 million people who are in the United States illegally. Law enforcement resources are just the tip of the iceberg. Infrastructure demands for massive detention facilities would have to be met, and there would have to be coordination with foreign nations where they would be sent. In short, this is most likely not possible, and most assuredly it is not a feasible “Day 1” goal.

More broadly than the things he has said he wants to do, which, as we’ve seen, can change at a moment’s notice, Donald Trump will be unable to do quite a few things. He will not be able to negotiate treaties without ratification from the Senate, he will not be able to declare war, spend federal money as though it is in his own pocket, or interpret laws to fit his whims. Judicial review is required on any and all interpretation of law. He may be able to pardon those who participated in January 6th, and I am sure he will try to find any workaround in the book to make his own federal cases go away. However, he will not legally be able to pardon himself for his actions and dismiss cases in that way. I guess it’s going to have to be the little things, now.

With this information firmly shielding you against the more pressing anxieties, I hope that while the news may not get any less crazy, you, my readers, will be able to dismiss the more outlandish wishlists of the President-Elect. I welcome questions in the coming months of the specifics of the things Donald Trump says or has said, as well as any other figures in Washington or your state legislature that say something that just doesn’t feel right. You are smart, capable people, and your gut instinct is your best defense against the nonsense, no matter where it comes from. I am happy to be here, writing for you all. Please let me know if you have questions or concerns.