U.S. president-elect Donald Trump attends a campaign event, in Allentown, Penn., on Oct. 29.Brendan McDermid/Reuters
The American body politic is about to get a stress test.
Every new president enters the White House with boundless ideas about what is possible. Donald Trump is no different, though his vision of his powers and prerogatives is more expansive and more elastic than that of any of his predecessors. In several elements of U.S. political life, from the economic sphere to judicial matters, Mr. Trump is openly vowing to test the legal guardrails of the country’s political system.
How will we know if Donald Trump has crashed through those guardrails? Here are some of the important areas where an attempt by his administration to seek new frontiers of power could mean the old political norms are about to fall away.
Impounding funds
When Congress appropriates funds – whether for new weapons, highway construction, health care expenditures or research – it expects the executive branch, headed by the president, to spend the money. Most presidents have done so routinely, so much so that the few attempts to withhold, or impound, funds have attracted attention and court challenges.
Fewer than a quarter of the attempts permitted under the Impoundment Control Act, a 1974 law restricting presidential impoundments, have met judicial standards. In total, the requests account for .07 per cent of federal spending since the act was passed, according to the non-partisan Congressional Budget Office. No president has tried impounding funds this century, though Mr. Trump briefly toyed with the idea in his first term.
Richard Nixon’s efforts to impound funds spawned the restrictions. “Nixon came into office with the understanding that there were virtually no limits to his executive authority,” said historian John Robert Greene, author of the 1993 book The Limits of Power: The Nixon and Ford Administrations. “It wasn’t until later in the administration that people saw that he believed he could selectively spend the money appropriated by Congress. That had never been done before and, being Nixon, he didn’t worry about it.”
His actions were struck down by a unanimous Supreme Court decision that affirmed the congressional power of the purse. “Nixon thought the Supreme Court was on his side – and it was a classic miscalculation,” Prof. Greene said. “President Trump would be wise to remember that counting on the Supreme Court, even if he thinks it is stacked with his supporters, is not a wise strategy.”
Senate confirmations
Article II, Section 2 of the Constitution requires the Senate, in its “advice and consent” role, to confirm many presidential appointees. But Mr. Trump has suggested that the chamber permits what are known as “recess appointments” – appointments made by the president alone while the Senate is not in session. This would allow his personnel choices to remain in office for as long as roughly two years without Senate approval.
Recess appointments were necessary, and somewhat routine, in the country’s founding era, when Congress met for only brief periods and when it was difficult and expensive to summon lawmakers from remote areas back to the capital. Now air travel makes it easy to reach Washington, and Congress is rarely out of session.
“Recess appointments as they’re being proposed – basically as a way of completely circumventing the Senate – are very obviously not what the framers of the Constitution had in mind,” said Charles Hunt, a Boise State University political scientist. “Having congressional leaders declare a Senate recess for the express purpose of ignoring their ‘advice and consent’ power would be a total abdication of one of Congress’s core responsibilities, and a tremendous blow to the idea of separation of powers.”
Lawmakers customarily are very protective of their constitutional rights and duties. Several senators, including Republicans such as outgoing Senate minority leader Mitch McConnell of Kentucky, have said they are concerned that the Trump concept risks weakening the constitutional balance of power.
The Federal Reserve Board
The Federal Reserve Board – whose decisions affect interest rates, control the money supply and have a major impact on inflation – jealously guards its independence. To preserve that independence, the chair of the Fed serves a four-year term that, by design, does not end at the same time as the sitting president’s term. This is supposed to prevent a new president from immediately changing the Fed’s leadership.
Even so, Mr. Trump has floated the idea of firing the current chair, Jerome Powell, whom he appointed in 2018. (Joe Biden then appointed Mr. Powell to a second term in 2022.)
The threat to fire the Fed chair is likely a hollow boast. Mr. Trump has backed away, and Mr. Powell has said he would not resign. Mr. Trump’s opponents worry that he will appoint compliant figures to the board.
“You don’t want to turn the Fed into another arm of the Trump presidency,” said David Wessel, director of the Brookings Institution’s Hutchins Center on Fiscal and Monetary Policy. “One of the few checks on Trump’s breaking of norms is that he does worry about the markets, and they are one of the few constraints on him. If he steps too far and the stock market crashes, he’d pay a big price and probably reverse himself.”
The Justice Department
Contrary to American folklore and much to the distress of presidents, including Mr. Trump, the attorney-general is not the president’s lawyer – which is why Bill Clinton and Barack Obama hired expensive private lawyers. Even so, attorneys-general such as Robert F. Kennedy (brother of the sitting president at the time, John F. Kennedy) and John Mitchell (Mr. Nixon’s one-time law partner) have had dangerously close relationships with presidents.
Mr. Trump has repeatedly charged that, under Attorney-General Merrick Garland, the Justice Department has been an arm of the Biden administration. He has selected Pam Bondi, a Trump partisan, to be attorney-general, and has spoken broadly of encouraging legal action against his opponents.
The FBI
Mr. Trump intends to replace FBI director Christopher A. Wray, whom he nominated for a 10-year term in 2017, with Kash Patel, who has spoken of immediately shuttering the agency’s headquarters, reopening it as the “Museum of the Deep State,” and bringing the bureau ”to heel.” Much of Mr. Trump’s resentment toward the FBI – which under the nearly half-century rule of J. Edgar Hoover was so powerful that presidents were afraid to cross the director – stems from the way the bureau searched his Mar-a-Lago home for classified documents in 2022.
The Internal Revenue Service
Critics of Mr. Trump worry that his notions of cutting the IRS budget are a step toward minimizing tax audits of the wealthy.
A half-dozen presidents, beginning with Franklin Delano Roosevelt – who unleashed the tax-collecting office against such rivals as senator Huey Long of Louisiana and former treasury secretary Andrew Mellon – have used the IRS as a political weapon. But Mr. Nixon – who targeted potential presidential candidates and senators Edmund Muskie of Maine, Edward M. Kennedy of Massachusetts and Hubert Humphrey of Minnesota – was the most promiscuous user of the agency for political purposes.
Abuse of the IRS requires the connivance of the commissioner of the agency and the treasury secretary, but when, in 1971 and 1972, Mr. Nixon attempted to win their co-operation, they balked.
“Nixon wanted to abuse the IRS, but was thwarted by his lieutenants,” said Timothy Naftali, who is the former director of the Nixon Presidential Library and Museum and who testified on these matters on Capitol Hill this autumn. “Donald Trump has vowed to run his second term without guardrails and has asserted he would appoint only individuals he could trust would do what he wanted. As a result, the door is open in a second Trump administration to abuses of the IRS that Nixon could only dream about.”
