Trump to push US constitutional and legal boundaries in second presidency
President-elect Donald Trump speaking in Arizona, August 2024. Gage Skidmore/Flickr
As Donald Trump prepares to assume the US presidency for a second time, he’s moving to bypass constitutional norms and centralise power.
Trump has called on Senate Republicans, who will control the upper chamber in January, to forego confirmation hearings and recorded votes for his cabinet nominees. It’s an unusual step but not surprising.
Those seeking the Senate leadership position ‘must agree to Recess Appointments…without which we will not be able to get people confirmed in a timely manner,’ Trump said in a social media post. ‘Sometimes, the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again.’
Trump is expected to push constitutional and legal boundaries in his second term as president, as he did from 2017 to 2021 – pushback is expected. The ability of US courts to constrain him will depend on whether Trump’s actions breach legal boundaries or mere norms of political conduct, says Michael L Novicoff, a Member of the IBA Litigation Committee Advisory Board and a partner at Pryor Cashman in Los Angeles.
Trump’s agenda raises tough questions about governing norms and the rule of law that may well reach the courts. ‘There are going to be a lot of court challenges, for sure. But the courts will have very limited ability and probably also limited interest in enforcing alleged norms as opposed to actual laws – particularly in a time when it’s very clear that there is no real consensus in America about what those norms are any more,’ Novicoff says. ‘And as far as actual laws go, the President-elect’s party may emerge from this election in a position to simply write new laws to overcome any potential judicial objections to their desired outcome.’
The courts will have very limited ability and probably also limited interest in enforcing alleged norms as opposed to actual laws
Michael L Novicoff
Member, IBA Litigation Committee Advisory Board
‘The rule of law is going to be under assault,’ says William Howell, the Sydney Stein Professor in American Politics and Director of the Center for Effective Government at the University of Chicago. ‘This is a former president and now President-elect who flouts norms and the Constitution and political institutions in all sorts of ways. And does so, not begrudgingly, but it’s at the centre of his project, which is one of disruption and grievance and trying to upend the political order that he sees as totally discredited,’ he adds.
Indeed, during his campaign, Trump suggested he would be a dictator for his first day in office and would issue a raft of executive orders reversing the policies of his predecessor President Joe Biden. A draft order reportedly circulating among Trump’s advisers would enable the removal of top US military generals not seen as aligned with Trump’s ‘Make America Great Again’ movement.
During his campaign, Trump talked about weaponising the Department of Justice to go after his political enemies with prosecutions, to impose retribution on those involved in the cases against him. ‘There’s a concern about lack of accountability in various dimensions, because a lot of the softer normative enforcement mechanisms for certain core principles of government that people rightfully think are important and value haven’t had the same sway with President Trump in the past and probably won’t in the future,’ says Scott R Anderson, a fellow in Governance Studies at the Brookings Institution in Washington, DC, and a senior fellow with the National Security Law Program at Columbia Law School.
Trump plans mass deportations of millions of undocumented migrants, a project that would probably require the internal deployment of the US military and turn the country into a police state. In mid-November Trump confirmed he planned to utilise the military to assist in the deportations.
He has also talked about bringing a quick end to Russia’s war in Ukraine, perhaps by withholding congressionally mandated military and financial aid. His remarks on NATO have raised concerns about his commitment to the alliance. And he’s threatened to unilaterally impose very substantial trade tariffs on China and the EU.
Trump has allied himself with billionaire Elon Musk who, alongside former Republican presidential candidate and biotech investor Vivek Ramaswamy, has been given an advisory role ‘outside of government’ in Trump’s team. They are preparing to slash regulations, restructure federal agencies and ‘dismantle government bureaucracy,’ according to Trump. ‘This will send shockwaves through the system,’ Musk said in a statement issued by Trump.
The idea will be familiar to the authors of the ‘Project 2025’ document, developed by think tank the Heritage Foundation and contributed to by former Trump advisers, which asserts controversially that the entire US executive branch falls under the control of the president, not Congress.
Howell warns that the plans are an ‘all-out assault on the administrative state’, which, he says, Trump intends ‘to cripple and sabotage […] so that it can’t do anything at all.’ Musk denied suggestions that the plans are a threat to democracy, asserting instead that they target ‘bureaucracy’.
All this makes Trump’s bid to bypass the Senate’s confirmation process dangerous. The Constitution says Cabinet officers must be confirmed with the ‘advice and consent of the Senate’.
For top government positions, the process involves background checks, one-on-one meetings with senators and public hearings. Those hearings often surface important policy debates about the statutory mandates of federal agencies and would give opposition legislators a chance to voice their views.
If Senate Republicans cede their confirmation powers to Trump, this would violate well-established American norms but isn’t explicitly illegal.
Meanwhile, the Supreme Court’s ‘separation of powers’ doctrine, as seen in the Court’s July judgment granting Trump broad presidential immunity from criminal prosecution, means legal limits on his official conduct are now unclear.