Trump the Second: from the Imperial Presidency to the Imperiled Republic edit

How dangerous will Donald M. Trump’s second term be? This article claims that he is seeking to undermine the fundamental elements of American government created by the Constitutional Convention in 1787 and poses the greatest threat to America’s republican system of government since the Civil War of 1861-65.

In a structure inspired by Montesquieu, the American constitutional order involves the separation of the three core powers of government--legislative, executive, and judicial--with each power largely exercised by an institution possessing autonomy and resources to check overreach by the other two. The system was the Convention’s answer to the daunting challenge identified by James Madison, a founder of the Constitution, in Federalist Paper no. 51 (1788): “In framing a government which is to administer men over men, the great difficulty lies in this: you must first create a government to govern the governed, and then in the next place oblige it to govern itself.” This institutional configuration is the foundation for America’s liberal, republican form of government.[1] In his second term, Trump appears bent on undermining the constitutional checks protecting this institutional balance by concentrating state power in his own hands.

Discussions of the founding period often include a famous (if apocryphal) remark by Benjamin Franklin, the Constitutional Convention’s elder statesman.  When asked after the Convention whether the newly created was a monarchy or a republic, he replied, “A republic, if you can keep it.” By that, Franklin wisely noted the need for vigilance and active efforts to prevent the republic from being undermined. That republic, which survived for over 2½ centuries, is now gravely imperiled.

Beginning in the early twentieth century (and especially after the New Deal), the equilibrium among the three branches of government became increasingly imbalanced as a result of the growing power of the executive branch.[2] The change was linked to the exponential increase in the scope and power of the central government. In 1973, presidential historian Arthur M. Schlesinger, Jr., ominously described the trend as The Imperial Presidency.[3] Because Donald Trump’s re-election promises to usher in such a vast and illegitimate increase in presidential power, the republican form of government risks being replaced by autocracy.

This article analyzes Trump’s plans for restructuring the government’s institutional architecture by substantially increasing the power of, and centralizing presidential control over, the executive branch, what he designates as the “deep state.” Doing so will increase Trump’s ability to pursue a dangerous and destructive agenda.

Is my prediction overly somber?  Two distinguished political scientists have recently offered a more sanguine and optimistic analysis. They claim that “the institutional framework of the United States is firm and resilient. It is capable of containing the ambitions of a power-hungry president….”[4] They allude to the facts that the Constitution contains strong safeguards designed to prevent abuses of power, and is difficult to amend, as well as that federalism (which allots substantial power to the states), and the two other branches of the national government, will constrain presidential overreach.

However, past practice, including Trump’s first term, is a misleading guide to his second term. As Peter Baker, the New York Times’ chief political correspondent has observed, “Eight years after his initial victory, Mr. Trump returns to the White House angrier, more embittered, more aggrieved and more overtly talking about revenge than the last time.”[5]  While constitutional checks and balances prevented tyranny in the past, including in Trump’s first term, they did not prevent re-electing an authoritarian, unscrupulous president, someone who was impeached twice and convicted of 34 felonies and sexual assault, who promoted a violent insurrection on January 6, 2021 to overturn his electoral defeat, and who has threatened to criminally prosecute 100 critics, including two former presidents, judges who presided at his trials, members of Congress, and journalists, along with millions of migrants, whom he has described as “vermin” and “the enemy from within who are poisoning the blood of Americans.” At the same time, Trump has announced plans to pardon most participants in the January 6th insurrection and cronies who were convicted of criminal activity.

For the Constitution’s checks and balances to be effective, the president must comply with the laws and Constitution or be held accountable if he violates them. While it is extremely difficult to amend the Constitution, Trump has demonstrated how it can be circumvented or outright violated. His first term perfectly illustrates how. Although he was impeached twice for violating the Constitution and organizing an insurrection, Senate Republicans refused to convict or otherwise sanction him. On the contrary, he emerged unscathed and was re-elected president. This result has normalized his unprecedented violations of democratic laws and norms. Further, Trump will be far less shackled by legal and constitutional checks thanks to a recent Supreme Court decision, described below, virtually guaranteeing him impunity for crimes that he may commit in the next four years.

Trump’s first term can be considered an imperfect dress rehearsal for what lies ahead. Thanks to the lessons learned from setbacks the first time, his second term promises to be far worse. When Trump assumed office in 2017, he was unprepared to govern, having never held elected office. Although those he appointed to executive positions were ideologically conservative, they did not owe complete loyalty to him. Many were experienced, qualified, and far removed from Trump’s anti-establishment orbit. After several successfully challenged some of his outlandish ideas, e.g., injecting bleach to treat Covid-19, he learned the importance of appointing ultra-loyalists to key positions. Many of his current nominees for key positions are inexperienced, incompetent, unqualified, immoral sycophants.  Their main qualification is blind loyalty: applicants for positions in the next Trump administration are routinely asked to support his false claims that the 2020 presidential election was stolen and that the January 6, 2021 insurrection was a peaceful legitimate protest.[6] Three other factors have influenced his choice of nominees: (a) family members; (b) media personalities: many nominees are participants and hosts on conservative TV cable shows and social media; and (c) great wealth: the collective worth of Trump’s nominees for his cabinet and other top executive positions is over $450 billion.[7]

Consider Robert M. Kennedy, Jr., Trump’s choice to head the Department of Health and Human Services, which comprises vitally important agencies that issue regulations to protect the nation’s health and safety. It has 89,000 employees, and an annual budget of nearly two trillion dollars. Kennedy was chosen as a reward for endorsing Trump’s candidacy after he ended his own presidential campaign. (His family name and reputation as a maverick also helped.) Kennedy has no scientific or medical training, supports conspiracy theories such as that the federal government used the Covid-19 pandemic to control people, and opposes vaccinations for Covid-19, measles, polio, and HIV-AIDS.[8] In a July 6, 2023, podcast (that he later withdrew), he asserted, “There’s no vaccine that is, you know, safe and effective.”[9] 

Trump is considering organizational changes that would ensure that the personnel of the executive branch are loyal to him rather than the law. One way will be reclassifying 50,000 or more civil service positions, presently filled on the basis of technical qualifications, as political positions whose occupants are appointed on the basis of partisan criteria. Doing so will enable Trump to hire and fire them at will and thereby weaponize the entire executive branch, including nonpartisan and independent agencies like the Federal Bureau of Investigation (FBI) and Justice Department. He has also indicated that personal loyalty will be a criterion for appointing military leaders.

Another lesson that Trump derived from his first term is the need to implement a detailed reform agenda that can be initiated on day 1 of his presidency. This will now be possible, thanks to the help of ultra-conservative think tanks that have been preparing such an agenda for years.[10]

The judiciary is one of the pillars of the American system of separation of powers. Trump has thus far enjoyed favorable treatment from the judiciary, partly because a majority of federal judges have been appointed by Republican presidents.  In Trump’s first term alone, he appointed one quarter of all lower-level judges and three ultra-conservative judges to the nine-member Supreme Court. (Another three of the nine were appointed by Republican presidents, making a six-person GOP-appointed supermajority.)  Although judges appointed by Trump and other GOP presidents have ruled against him in criminal cases, including those involving his effort to overturn his electoral defeat, they have often accorded him exceptional leniency. One example, whose importance cannot be overstated, was the Supreme Court’s decision last July aptly named Trump v. United States. The case ruled on Trump’s appeal of the Justice Department’s prosecution of him for having promoted the insurrection of January 6, 2021, and for concealing and lying after leaving office about his unauthorized possession of highly classified documents. All six Supreme Court justices appointed by Republican presidents on the Supreme Court upended centuries of constitutional precedent and the very concept of equal justice under law by declaring that sitting and former presidents enjoy “absolute immunity” from prosecution when their actions relate to “core presidential functions,” as well as enjoy the “presumption of immunity” for other official (but not personal) actions while president.

This decision will vastly increase Trump’s powers in his second term.  Its impact was immediate. The Special Counsel prosecuting Trump for promoting insurrection and retaining classified documents petitioned the judiciary to halt the legal process. So much for accountability of his past perfidy. As for the future, Trump will have a free hand beginning January 20, 2025, to engage in nearly limitless criminal behavior.[11]  

In a scathing dissent from the majority opinion, Justice Sonya Sotomayor claimed that the opinion was “utterly indefensible” and enabled the president to be a “king above the law.” She wryly commented, “Ironic isn’t it? The man in charge of enforcing the laws can now just break them…. The decision will have disastrous consequences for... our democracy.”[12]

A factor that might potentially limit Trump’s ability to implement his agenda is whether he can obtain required congressional support. Given that GOP has a majority in both houses of Congress, and he exercises near-total control of the party, this will probably prove a relatively weak check. However, given the GOP’s razor-thin majority in both houses, near-total unanimity among Republicans will be required.[13] Moreover, thanks to Congress’ past abdication of its constitutional powers by both Democrats and Republicans, the president can take many initiatives by issuing executive orders. For good measure, Trump might use this procedure to order executive officials to refrain from spending funds appropriated by Congress for uses that he opposes. If so, this would further confirm Sotomayor’s characterization of the president as monarch.

An early indication of how far Congress might go to abase itself is whether the Senate will confirm Trump’s nominees for key executive positions. While most are morally flawed, lack managerial experience and competence in the specialized areas that their departments will regulate, and often oppose the core missions of these department, the GOP-controlled Senate appears likely to confirm nearly all nominees.[14]  

If Trump succeeds in consolidating control of the executive and marginalizes Congress and the courts, will this suffice for him to achieve his dangerous goals? There will inevitably be conflicts among key executive officials, despite their fealty to Trump, as well as contradictions among policy proposals, the slow pace of Congressional action, and further delays and possible resistance from court challenges. Further, Trump himself is aging, erratic and unpredictable.

The Trump administration’s authoritarian control may prove short-lived. More likely than that its policies will enable the trains to run on time is that they will produce trainwrecks. Since many of the administration’s proposals are highly unpopular, they may rapidly provoke a backlash. Social movements may surge to oppose the administration’s reactionary reforms. The GOP might lose control of one or both houses of Congress in the 2026 mid-term elections. If so, the system of checks and balances, even in their weakened state, might help preserve American democracy. Finally, Trump’s isolationist foreign policies will doubtless alienate U.S. allies and accelerate the decline of American hegemony. With that said, it is useful apply to the political market British economist John Maynard Keynes’ famous criticism of the alleged capacity of the self-regulating market to recover from disaster in the long run: “The problem is that, In the long run, we’re all dead.”

[1] This is not to claim that it ever came close to fulfilling the audacious claim of the Declaration of Independence that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable right, that among these are Life, Liberty, and the pursuit of Happiness.” There were, and are, immense flaws in the way that the political system has functioned, beginning with the original sins of ethnic cleansing, and legitimating slavery, as well as directly and indirectly promoting gender, class, and other structural inequalities.

[2] Relatedly, the judiciary has also gained great power, while the power of Congress, originally regarded as the most influential branch, has plummeted.

[3] Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973).

[4] Eva Bellon and Kurt Weyland, “Why American democracy will survive,” Washington Post, November 26, 2024. https://www.washingtonpost.com/opinions/2024/11/26/american-democracy-resilience-trump-second-term/

[5] Peter Baker, “Trump is Pulled Toward 2 Paths on Retribution,” New York Times, December 11, 2024.

[6] David E. Sanger et al, “Test of Loyalty for Applicants to Trump Jobs,” New York Times, December 9, 2024.

[7] https://qz.com/trump-rich-cabinet-billionaires-musk-lutnick-rfk-jr-1851718924.

[8] To his credit, Kennedy has lambasted giant pharmaceutical companies for their high prices and profits, and agribusiness for promoting processed food products laced with toxic chemicals, salt, sugar, and corn syrup.

[9] https://www.nytimes.com/live/2024/12/17/us/trump-administration-news.

[10] For details about one influential project, see Mark Kesselman, “Le Crepuscule de la democratie americaine,” Telos, January 20, 2024.

[11] Congress will continue to retain the power to impeach and convict the president. But, given the GOP’s control of Congress, doing so will be virtually impossible.

[12] While this breathtaking grant of immunity extends only to Trump and future presidents, the Constitution grants the president unlimited power to pardon those convicted of federal crimes. Joseph Biden recently pardoned his so and Trump has declared that he may pardon most of the 1,265 people prosecuted for participation in the January 6th insurrection, 465 of whom were convicted and imprisoned.

[13] However, current senatorial rules require that most legislation must be passed by a 60-member super-majority. Since both chambers must approve a bill for it to become a law, and there will only be 53 GOP senators in the Congress that meets in January, this constitutes a major obstacle to Trump’s achieving his legislative agenda. On the other hand, the incoming Senate could eliminate this rule, in which case only a simple majority would suffice for passing legislation. Trump also possesses wide latitude to issue executive orders that do not require congressional approval.

[14] To be sure, the GOP has razor-thin majorities in both houses, and Democrats will oppose many nominees, so even several Republican defections would prevent confirmation. Further complicating the GOP’s dilemma is that all members of the House of Representatives and 20 Republican senators face re-election in the 2026 mid-terms. Republican incumbents in closely contested districts will fear voters’ wrath if they vote to approve unpopular nominees or policies.  These incumbents will be torn between their fear of Trump’s retribution and their electoral ambitions. However, if the Senate rejects his choices, Trump could appoint them by a procedure known as recess appointments that circumvent the need for senatorial approval. Doing so, however, would require the cooperation of Senate majority leader John Thune, one of the few GOP senators not fully loyal to Trump.