What checks, if any, could there be on a newly emboldened Donald Trump once he takes office?
As the country settles in for the anxious interregnum between Trump’s electoral victory this week and his inauguration in late January, this question is paramount for all who are concerned about the rapid changes that Trump has pledged to make to immigration, climate, abortion, labor and education policy. These will include a punitive approach to immigrants, both those here legally and undocumented, an erosion of the social safety net, a rollback of measures that have advanced modest improvements in U.S. climate policy and advancing the culture war via education policy.
In Trump’s first administration, some of his own appointees occasionally acted to curb his most destructive and outré impulses, but in most arenas, those who sought to rein in Trump the first time around have been purged from his administration, either through resignations or firings, leaving him surrounded instead by lackeys who were eager to cosign on his agenda. This was especially true in the case of the more establishment-friendly Republicans who staffed Trump’s administration in its earliest day, who subsequently left the White House either after disagreements with Trump or in the wake of losing one of the internal power struggles that Trump’s administration became known for.
Where then, might checks on his power come from?
The first and arguably most critical question is whether Democrats will take control of the House of Representatives. Republicans have already wrested back control of the Senate, and with the House in the Republican column as well, Trump would enjoy tripartite control of the executive and legislative branches, as he did during the first two years of his first administration.
Control of the House is still up in the air, with the outcome hinging on just a handful of races in competitive purple districts. While both parties are declaring that they are likely to win a majority, it’s still not clear which will come out on top. Republicans currently have a slight advantage, having flipped three seats to the Democrats’ two, but many more races remain to be called.
In 2019, when Democrats retook control of the House from Republicans after the 2018 midterms, it was seen as an opportunity for Democrats to begin to push back more forcefully against the parts of Trump’s agenda they found most objectionable, and take the president himself to task. The 116th Congress was marked especially by investigations into Trump and his administration appointees, with many Trump associates dragged before House congressional hearings. These investigations culminated in impeachment hearings against Trump in late 2019, which ultimately resulted in his acquittal in the Republican-controlled Senate.
Democrats also used the opportunity to introduce legislation that they knew had no chance of passing the Senate or receiving Trump’s signature, but that telegraphed Democratic policy prescriptions for a future Democratic administration. These included bills addressing statehood for Washington, D.C., marijuana legalization, ending qualified immunity for police officers and shoring up voting rights. None of these bills made it through the Senate.
State and local legislatures could serve as a bulwark against the most extreme policies Trump wants to pursue.
If Democrats end up controlling the House in 2025, they may resort to a similar approach in attempting to contain Trump. However, many of the investigations of Trump and his associates, which built toward a case for impeachment, were oriented around preventing Trump from being eligible for a second term as president. Now that Trump has won his second term — which, if the U.S. Constitution continues to be obeyed, is supposed to be his final one — those efforts might be seen as politically less efficacious.
Democrats might also go on the offensive against Trump, either in the lame duck period, or in the next congressional session, assuming that they take control of the House. In this scenario, Democrats could leverage Trump’s many legal liabilities to make life difficult for him and continuously remind the American public of his many illegal acts. This would also have the effect of tying up Republican policy making by forcing Senate Republicans and the White House to constantly parry legislation aimed at Trump and his inner circle.
Bills recently introduced in the Senate, which is currently controlled by the Democrats, give a hint as to what those efforts could look like. In August of this year, for example, Senate Majority Leader Chuck Schumer introduced the No Kings Act, which would invalidate the Supreme Court’s ruling this summer that presidents have immunity from criminal prosecutions. With Republicans still in control of the House, Schumer’s legislation has little chance of becoming law, but it previews the kind of tack Democrats might take in the legislature in trying to hem in Trump’s excesses.
Ultimately, House Democrats may end up playing defense much more than they’re able to go on the offensive. It is almost certain that if Democrats do retake the House, they’ll spend the majority of their time voting down Republican proposals, which may stymie some of the more sweeping policy changes the Trump administration would like to make and force the president to pursue other, less effective avenues for advancing policy making, such as executive orders.
Outside of the legislative branch, Democrats may try to use other levers of government to make Trump’s agenda more difficult to execute. In 2017, with Trump poised to take office, then-President Barack Obama undertook a flurry of executive actions aimed at curtailing Trump’s power in office and shoring up the accomplishments of his own administration. It’s possible that Joe Biden may pursue a similar route, taking measures to protect new climate initiatives unveiled during his time in office or instituting more protections for the Affordable Care Act, which Trump has occasionally said he will try again to overturn or replace. Any executive actions that Biden implements in the lame duck session, of course, are liable to be repealed just as quickly by Trump, and so might not make a lasting impact.
Finally, there are state and local legislatures that could serve as a bulwark against the most extreme policies Trump wants to pursue. During Trump’s first administration, many large cities in comparatively progressive parts of the country adopted a “sanctuary city” mantle, wherein municipalities instructed their local police departments not to cooperate with Immigration and Customs Enforcement directives. With Trump promising to pursue a mass deportation agenda, local governments may again see the burden of combating his most pernicious policies fall squarely on their shoulders. Trump has said he will seek to punish cities and states that don’t comply with federal policy, and it’s possible that local and state governments will find themselves in direct legal confrontation with his administration.
Wherever friction with the Trump administration occurs, though, the best Democrats can hope for, at least for the near term, is to create gridlock. With only one chamber of Congress under Democratic control, as a best-case scenario, Democrats will have few options for pursuing policy of their own. That means Trump will start his second presidency in a position to dictate the terms of engagement with the opposition party.
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