Trying to grasp quite what is going on as Donald Trump assembles his new administration is difficult. His early picks for top roles reinforce that he is deadly serious about both mass deportation and revenge, two of the main themes of his campaign, but one of the strangest and most ominous signs is the president-elect’s posture toward Congress.
When Trump fulminates against his enemies, he tends to cite Democrats or the permanent federal bureaucracy, but Trump is actually laying the groundwork to bypass Republicans to enact big parts of his agenda.
The juxtaposition is superficially mysterious. Yesterday, networks called enough races to confirm that Republicans will hold majorities in both the House and Senate. That gives the GOP power on Capitol Hill, at the White House, and in effect in the Supreme Court as well, where six of the nine justices were appointed by Republican presidents. Yet Trump has spent the last few days demanding the power to appoint people to top roles without Senate approval and discussing how to make major spending decisions without Congress’s involvement. This may be what the erosion of democracy under Trump II actually looks like: not supercharged partisan warfare, but brazen power grabs from those who are already aligned with him.
[David A. Graham: The thing that binds Hegseth, Gabbard, and Gaetz to Trump]
Congress’s most fundamental power is the power of the purse—and in a century when legislators have steadily yielded power to the executive branch, it’s one of the few they retain. But The Washington Post reports that Trump aides want to use a power called “impoundment” to unilaterally implement cost-cutting recommendations from the so-called Department of Government Efficiency, a panel led by Elon Musk and Vivek Ramaswamy. Impoundment is when presidents simply refuse to spend money that Congress has appropriated. After Richard Nixon used the power prolifically, Congress passed a law banning the practice. But some Trump aides think the law is unconstitutional and ripe for challenging, and they see executive power as a way to radically reshape government.
Another bedrock power of the Senate is the power to advise and consent on major appointments. Trump frequently bypassed that during his first presidency by appointing people to serve in acting capacities. This solved two problems: He was slow to nominate candidates for many positions, and many of those he nominated struggled to get confirmed because they were unqualified or had other vetting issues.
Trump is trying to get ahead of that problem now. On Sunday, ahead of leadership elections for Senate Republicans, Trump posted on social media that “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner. Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY!” (His aides have also proposed that Trump grant security clearances without the standard FBI vetting process.)
[Read: What Trump can (and probably can’t) do with his trifecta]
Ed Whelan, a leading conservative legal voice, writes in the generally Trump-aligned conservative magazine National Review that using recess appointments to fill the Cabinet is “an awful and anti-constitutional idea.” He explains, “It’s a fundamental general feature of our system of separated powers that the president shall submit his nominations for major offices to the Senate for approval. That feature plays a vital role in helping to ensure that the president makes quality picks.”
This should not require explaining—it’s the stuff of basic primary-school civics education. And yet Whelan writes in a second article that he’s heard of an even more outrageous scheme to adjourn both chambers of Congress to effect recess appointments. How serious is this? As with the DOGE, it is impossible, by design, to know for sure. Bracketing the details aside, however, the goal of buffaloing Congress is clear.
John Thune of South Dakota, who won the Senate leadership election, has signaled a preference for using the standard process rather than recess appointments. “I’m willing to grind through it and do it the old-fashioned way,” he said yesterday. But Trump has set up a test of his power by nominating a series of picks who would otherwise appear unconfirmable, including Pete Hegseth for secretary of defense, Matt Gaetz for attorney general, and Tulsi Gabbard for director of national intelligence. And yet Trump has encountered very little open resistance to any of them. Roger Wicker, the chair of the Senate Armed Services Committee, has already endorsed Hegseth.
[David A. Graham: The terminally online are in charge now]
Republicans who served in the House with Gaetz are sputtering mad about his nomination, and the immediate consensus after his pick was that he’d be very hard to confirm, but that represents a lack of imagination. Plenty of Senate Republicans expressed dismay or doubt about Gaetz, but as far as I know none have publicly ruled out voting for him, and CBS’s Robert Costa reports that some members are privately already throwing in the towel.
So Trump might well be able to get the appointments he wants through normal channels. If senators will give him that, he might also be able to get major spending cuts through Congress. Yes, Republican margins are small, but Speaker Mike Johnson is eager to stay on Trump’s good side, and the pressure on any moderates to stay in line will be enormous.
Perhaps the saber-rattling about recess appointments and impoundment is just a way to make sure Trump gets what he wants. But combined with Trump’s previous frustrations about checks and balances, his demonstrated disdain for the rule of law, and his promises to wield power by whatever means necessary to achieve his goals, it’s equally or more plausible that Trump is preparing for a serious power grab.
[Quinta Jurecic: The Supreme Court’s effort to save Trump is already working]
If Congress doesn’t do anything to stop him—something that it shows little appetite for doing—then actions from Trump would surely get challenged in the courts. But Trump doesn’t fear the courts. Both during his first presidency and during the interregnum, when he faced criminal charges, Trump has found that it’s fairly easy to draw our proceedings for years and create facts on the ground that courts are resistant to undo, and also may be unable to truly undo. Failing that, he has seen that the Supreme Court is very willing to grant him wide leeway.
In short, this may be what the erosion of democracy in Trump’s second term looks like. Some critics warn he may cancel elections or lock up critics without trial. But those sorts of things are not only politically toxic and likely to draw a fierce backlash; they’re also unnecessary. As long as neither the courts nor the Congress can or will restrain Trump, he can just keep arrogating new powers to himself until the presidency, and the nation, start to become unrecognizable.