The early weeks of Donald Trump’s second term have been alarming, but revealing. The president has sent a clear signal of how he intends to govern, and we have begun to get a sense of how various constraints on his power may function, or not.
The new president has shown that he intends to make good on the most far-reaching promises of his campaign. Along the way, his team intends to shatter our inherited understanding of the presidency. They clearly believe that the president’s unquestioned leadership in setting the public agenda — turbocharged in the case of this president by his utter domination of the Republican Party — should be matched by unquestioned leadership in setting policy, and indeed allocating power. In this worldview, his constitutional obligation to “take care that the laws are faithfully executed” is more empowering than binding, for he can determine what the laws mean without deferring to precedent.
It is worth reckoning carefully with the words of Russell Vought, the president’s nominee to head the Office of Management and Budget:
Originalism should not just be interpreting the words in their original meaning. It should be to understand the logic of the original Constitution and how these authorities should be used unencumbered by the scar tissue resulting from decades of bad cases and bad statesmen. (emph. added)
Vought is saying not that we should rethink, reinterpret, or relitigate what he considers bad constitutional law: We should wield political power as if that law doesn’t exist. Past presidents, including Joe Biden, have claimed powers that seemed to clearly surpass what the law allowed. But they have not done so at this pace, or with the posture that the standing law was illegitimate. This is precisely how the administration has acted in its order purporting to end birthright citizenship; its claim to immunize TikTok from criminal liability; its arbitrary freezing of congressionally authorized spending; its abrupt firing of inspectors general, DOJ prosecutors, and leading FBI officials; its shuttering of USAID; and more. What makes this unprecedented disregard for the law even more disturbing is that it has been accompanied by moves that appear to condone or even invite violence, such as the pardoning of Jan. 6 insurrectionists and the yanking of security details protecting former officials whom Trump views as disloyal.
It goes without saying that when one begins from the premise that the president should exercise absolute control over the executive branch and that he can ignore constitutional arrangements he disagrees with, independent bureaucratic judgment and independent legal advice are suspect. So it is logical that Trump’s deputies, including Cabinet secretaries, are qualified primarily by personal loyalty, which has openly overwhelmed competence in the nomination and confirmation process.
Trump can afford to govern this way in part because he has proposed few large and complex programs. For the one nearest to his heart — mass deportation — he has leadership that is both competent and motivated. The task that Trump has delegated to Elon Musk — enhancing government efficiency — should be approached as an enormous and thorny problem, but that is obviously not the posture Musk has adopted. Aggressive tariffs may require more personnel, but they are not particularly complicated. And despite persistent hopes the GOP will embrace a genuine economic populism, Trump harbors no ambitions for major new industrial and infrastructure policies.
This is a dangerous moment that requires an analytical approach, one that games out the individual pathways that every lawless action could take, where the likeliest blockages are to be found, and how dimensions and time horizons will interact.
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What, then, are the prospects for reining in an administration that is running riot in matters both foreign and domestic? In the short term, it is not clear we can do much better than urging civil servants to hang on and waiting for the consequences of Trump’s actions to reverberate.
Congressional Republicans have shown that without a dramatic change in public opinion, they will not take risks to challenge the president in his radical approach. While some offices are working behind the scenes to reverse the damage from some of his executive actions, and a few members have mildly rebuked some of his statements, no critical mass has emerged to seriously push back against his most outrageous moves. The continued progress of Trump’s tragicomic nominations — Pete Hegseth, Tulsi Gabbard, Kash Patel, and Robert F. Kennedy Jr. — are the most obvious example. The powers being handed over to this collection of unqualified radicals cannot simply be curtailed or taken back when they overreach. Their confirmations are (or were) the time and place to take a stand. Republicans also signaled acquiescence to the radical memo purporting to shut down federal grant funding, with the chairman of the House Appropriations Committee even asserting that an appropriation “is not a law.”
That does not mean Congress is a lost cause for the rest of this presidency — far from it. But when broad public sentiment appears to favor the president, no major anchors of the Republican coalition are challenging him, and resistance is highly visible, lawmakers will not stick out their necks. This is particularly true on actions that are more or less self-executing, such as the pardons of the violent Jan. 6 insurrectionists. On such matters, even objections from stalwart law enforcement and military voices will not override fear of punishment by the base.
The judicial branch has shown more spine, with judges blocking such gambits as the purported ban on birthright citizenship and the funding freeze. But the gears of justice move slowly, while the executive moves with dispatch. What’s more, even actions that seem obviously illegal can face challenging pathways through the courts. For example, wrongful terminations of civil servants, such as the purge at the Justice Department, require redress through a procedure that leads to appeals before the Merit Systems Protection Board. That body was crippled by the absence of a quorum between 2017 and 2022. Statutory protections notwithstanding, Trump could remove board members as he has done at the Equal Employment Opportunity Commission and National Labor Relations Board to again incapacitate the MSPB. Even without such machinations, the ordinary delays of a legal process mean in many cases the damage will be done by the time a decision is rendered. For example, it can take only days or weeks to destroy the nonprofits or contractors that depend on federal grant funding, especially in precarious situations abroad. And legal victory is not assured in all cases of radical action by the president. The combination of national-security pretexts and emergency powers give the president the legal upper hand in imposing tariffs or restricting immigration, and the Supreme Court has proved willing in the past to take his threadbare justifications at face value.
Then there is the prospect of defiance. Donald Trump himself has made clear his disdain for the courts, and he is now surrounded by people who share it. Russell Vought has offered an intellectual argument for ignoring judicial orders; Vice President J.D. Vance has been more blunt. There is a very real possibility that Trump will ignore an adverse ruling from an appellate court or even the Supreme Court itself. In that case, a court may order a subordinate official to take whatever mechanical action it demands — issuing a passport, for example. But subordinate officials can be removed, and already the Musk team has gained access to the check-cutting machinery of the Treasury Department, which previously would have been viewed as a clerical shop of no interest to political principals. Outright spurning of a judicial order would result in constitutional crisis in which Congress would have to rhetorically back the courts, credibly threaten to withhold appropriations, and potentially file articles of impeachment.
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Ezra Klein argues that the rapid pace of Trump’s actions is good news here. Because Trump is not moving slowly to build public goodwill, Klein reckons, his thin margins with the electorate and in Congress will leave him exposed in the event of a crisis. There is in fact reason to believe that a critical mass (though still a minority) of congressional Republicans would step up in such a scenario, especially if the rulings in question came from Trump-appointed judges. Lawmakers’ intervention could then be couched in terms of “respect for the law” rather than opposition to Trump. It would not be the first time legislators relied upon courts to take some dirty work off their hands. At the moment, however, the logic could just as well go the other way: Without a highly mobilized public opposition, and with broad agreement that the president has a warrant to refashion government and crack down on immigration, members of Congress may believe that his popularity has yet to peak.
Speed advantages the agents of chaos in other ways. Trump’s team is aiming to create the impression of king-like powers not just with the media and the public, but also with the president himself. Moving fast, they may think, is the way to establish the precedent of defying the courts. What’s more, as explained above, many of the fast actions Trump is taking will have done their damage once opposition emerges. Pete Hegseth will still be running the Defense Department a month from now. Organizations that dispense lifesaving medications in Africa will have closed up shop. Fired civil servants will have taken new jobs. And sweeping actions, even if they end up in whipsawing reversals, put both domestic opponents and foreign allies on notice that the old order can no longer be relied upon.
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The good news is not that Trump is moving fast. It’s that the action will soon move to Congress. Once the initial high-level nominations are cleared, Congress will need to approve a continuing resolution to keep the government open, and then a reconciliation bill to fund Trump’s priorities. It is here that the cracks will emerge, because members can throw sand in the gears through relatively low-profile actions (or inactions), and can blame one another for stalling the president’s agenda in a way that the public will find difficult to track. Trump’s habit of resolving such disputes by bullying recalcitrant Republicans may not work in this scenario, because even knowing who to take aim at will require some sophisticated knowledge of process and policy.
All of this maneuvering will also buy time for the new, grim reality to set in with the most powerful reservoirs of backlash to Trump: the markets and the public.
The first of these has already been activated, and proved to have teeth. Markets thus far have taken a naive view of Trump, assuming he will deliver deregulation and tax cuts with only mildly increased inflation. That view seems wrong to me, but the good news about the market being wrong is that corrections come dramatically and suddenly. When Trump made good on tariff threats that investors had not believed over the weekend, indexes opened Monday sharply lower. By the end of the day, he had walked back his plan.
The public responds more slowly. A “vibe shift” to the right does not instantly turn in the opposite direction across this entire country when things start going wrong — especially when they are confusing and complicated things, and the usual sides seem to be shouting at each other. But some kind of vibe shift is inevitable. Political science teaches us that even if Trump were doing popular things, public opinion would thermostatically turn against him. When ordinary Americans begin to absorb the unpopular things he has already done or is planning, the vibe will turn. Members of Congress will pick up on that shift. And then, those Republicans who face a tough midterm reelection fight may suddenly rediscover their courage.
Donald Trump’s team may believe the executive branch has become a shell of itself. In fact, the office has acquired its vast powers only because previous generations of Americans could not imagine it being occupied by a person as unrestrained and imperious as the new president. Our generation delivered it into his hands. We will need to see more of the consequences of that mistake before we decide to own it and reverse course.