Illustration by Akshita Chandra / The Atlantic. Source: Getty.
In this first year of his second term, President Donald Trump has claimed broad powers to unilaterally restructure much of how the U.S. government functions. Some of these assertions have
gone completely unchallenged. Others have been litigated, and although lower courts have been skeptical of many of these efforts, the Supreme Court has been more approving. Trump has taken as much advantage of his new powers as he plausibly can,
prosecuting his political enemies,
firing independent agency heads, and
dismantling federal agencies almost at a whim.
One salient question now is: When and if the Democrats return to power, how much of Trump’s damage can they undo? Let’s assume, for the moment, that the Supreme Court acts in good faith—that its views on presidential power are without partisan favor, and that it doesn’t arbitrarily invent carve-outs to rein in a Democratic president. What then?
Even with such (unlikely) parameters, the outcomes of this thought experiment suggest few opportunities for a Democratic president to make positive use of these novel presidential powers. Most of the powers that Trump asserts are either preclusive (preventing something from happening) or negating (ending something that is already in process). Few of them are positive powers, allowing the creation of something new, and even those are not permanent—the next Republican president could likely reverse most Democratic initiatives, sending the country into a retaliatory spiral.
Consider, as a first point of examination, the president’s newly established power to restructure the federal workforce, as in the layoffs
of more than 1,300 State Department employees, the
dismissal of inspectors general, and the firing of
independent agency members. Most recently, the Supreme Court authorized Trump to
continue with his plan to dismantle the Department of Education, despite a statute mandating its creation.
A future Democratic president, if so inclined, could seek to use that same authority to reverse some of what Trump has done. He could, for example, remove all of the Trump-appointed commissioners from the formerly independent agencies (such as the Securities and Exchange Commission and the National Labor Relations Board) and replace them with Democratic appointees whose views are more consistent with the president’s.
This new president could also attempt to reconstitute institutions that have been decimated, such as
Voice of America, and restore the many State Department bureaus and functions that have been terminated. He could, presumably, re-create the Department of Education and restore the workforce at the
National Oceanic and Atmospheric Administration and
NASA.
Even if attempted restorations are legal, however, they may not succeed in practice. Firing experts is much easier than hiring them. And given the uncertainties that Trump has created, our best and brightest might not willingly take positions in the federal government. Who wants a job that might last only four years?
Meanwhile, across the government, a Democratic president could fire all of the employees who were hired by Trump and agreed to
his loyalty requirements. The president could also use the same authority to significantly diminish the workforce at agencies whose functions he is less warm to. Many of the soon-to-be-hired ICE employees, for instance, might find themselves subject to a reduction in force under a new Democratic administration.
To be sure, the Supreme Court, as it is currently constituted, might find a rationale to block the dismantling of the TSA or the Department of Homeland Security. But very few functions at DHS are statutorily mandated at the current level of activity, and there is no legal distinction between presidential authority over DHS and, say, the Department of Education.
Likewise, a Democratic president could reinstate funding to several grant-making agencies that Trump has defunded. He could restore international-aid funding to
USAID and authorize the
Institute of Museum and Library Sciences to resume distributing grants to American recipients. All of the
National Science Foundation and
National Institutes of Health funding that has been pulled from basic research at major universities could be restored. Again, however, this is easier said than done—interrupted funding has likely permanently terminated some scientific inquiry and driven U.S.-based scientists overseas. International-aid programs that were suspended will be hard to rebuild.
Some recent policy changes are more readily reversible.
Transgender soldiers could be welcomed back into the military, for example. Forts can be renamed, and the U.S. can rejoin international organizations. Here, too, the harmful effects can be mitigated, but the prospect of a return of Trumpism down the line will resonate for a long time in terms of substantial losses of expertise, stability, and trust.
Trump has also been aggressive in using federal funding as a means of encouraging his policy priorities in the private sector. Even when his efforts are resisted by the courts (
such as his attempt to defund Harvard), his threats to federal funding have caused other institutions, such as the University of Pennsylvania, to
change their policies or, in the case of the University of Virginia,
dismiss their leaders. The same is true of his
assault on big law firms; although his efforts have been legally stymied, their impact on major firms has already been significant.
What could a Democratic president do with this power? Most obviously, the president could flip Trump’s agenda on its head—denying federal funding to universities that lack DEI policies, for example, or ousting from federal contracts any conservative law firms that have provided pro bono services to disfavored causes, or whose partners played significant roles in the Trump administration.
Perhaps most dangerous, a Democrat could reverse the changes at the Department of Justice, not in an effort to make it apolitical but in the hopes of serving friends on the left and punishing the Trump-affiliated right. The president could dismiss any pending cases against allies (as
Attorney General Pam Bondi recently did for a Utah doctor who issued fake COVID-vaccination cards) and use their power to punish opponents—White House Deputy Chief of Staff Stephen Miller, the former Trump adviser Steve Bannon, and others could face the expense of criminal investigation. Conservative states such as Alabama and Texas could be investigated for civil-rights violations. Likewise, corporate officials who have caved to Trump,
such as Shari Redstone of Paramount, have already been suggested as investigative targets. And the president could unilaterally issue subpoenas to almost any conservative-supporting institution—say, political consultants for evangelical-church organizations. A president could, perhaps, even attempt to end the nonprofit status of all religious organizations—though one suspects that this Supreme Court would not permit that step on religious-liberty grounds.
One of the most significant assertions of presidential power Trump has made is that he can nullify a law—that is, that he can dispense with enforcing it based on his authority as chief executive. The prime example of this is his refusal to enforce the
congressionally mandated ban on TikTok on the specious ground that he has national-security power to do so. Under this theory, almost any regulatory requirement could be suspended for being inconsistent with national security. A future Democratic president might, for example, dispense with limits on labor-union organizing on the grounds that the workforce is essential to national competitiveness. Export or import licenses could be manipulated to fund military activities. Or, to parallel Trump as much as possible, penalties against favored European enterprises could be waived as part of “diplomatic negotiations,” and existing exemptions for disfavored nations could be ignored. The possibilities are almost as endless as a president’s imagination.
Ultimately, a Democratic president with the political will to use the levers of power left by Trump could at least partially restore the status quo ante and unilaterally impose certain changes as well—which a subsequent Republican president could then undo.
What lies ahead, then, is a new era of pendulum swings, replacing the stability of the postwar governing consensus. Ahead is a cycle of retributive prosecutions and whipsaw funding decisions. America may see entire Cabinet departments alternatively created and closed every four years while the presidency goes from policy to anti-policy—enforcing DEI in one administration, perhaps, and prohibiting it in the next. The country would, in effect, return to the time before the
Pendleton Act, when the entire federal workforce turned over with each successive administration, rewarding cronyism at the expense of expertise.
But in this new power arrangement, the Trump-aligned presidents will have the advantage.
It takes only 20 minutes to dismiss 1,300 State Department employees; their expertise cannot be replaced in 20 years, much less a single presidential term. Other departments and agencies can never be fully restored. To cite a mundane example, in the first six months of Trump’s second term, the DOJ has lost
two-thirds of the experienced attorneys in the Federal Programs branch (which defends the government in civil court). Many resigned rather than have to defend Trump’s initiatives. That level of destruction cannot be quickly fixed.
What Trump and the Supreme Court have created is a ratchet of destruction. They have discovered that knocking things down is far easier than building them. And because the overall conservative project is to reduce the size of government, the structural advantage of destruction over creation is ineradicable. Even the most effective possible responses from a Democratic president (such as scaling down ICE to a bare minimum) come with their own set of problems.
All of this might have been different had the Supreme Court stepped in to diminish or negate these new assertions of presidential power, but it has not. And so the pendulum will swing back and forth, but the long-term trend is toward an ever-diminishing federal government that does whatever a conservative Court will permit it to do. The prospect is not just sad—it is terrifying.
Paul Rosenzweig is a principal at Red Branch Consulting. From 2005 to 2009 he was the deputy assistant secretary for policy of the Department of Homeland Security. He teaches cybersecurity at the George Washington University Law School. He previously served as a senior counsel in the investigation of President Bill Clinton.
