We Still Need to Trump-Proof America
10 min read
What will happen if Donald Trump secures a second term as president? Polling remains close—and though a Democratic victory seems far more likely than it did before the Biden-Harris swap, it’s hardly assured. Should Trump pull out a win in November, voters might imagine that they know what to expect: more chaos, more grievance, more all-caps rants on social media. But a second Trump term would be much more dangerous than the first.
Trump’s unexpected victory in 2016 left him flailing to staff the executive branch and unequipped with the knowledge of how to direct the machine of government. Now, though, his supporters have had four years in which to prepare. Democrats in Congress and the White House could have prevented this by Trump-proofing the government, knowing he may soon be back. Instead, they have dithered, and the damage, should he return to power, will be immense.
Trump’s presidency served as a warped civics lesson of sorts, through which Americans learned just how much the president can get away with. Many of the constraints that past presidents operated within, such as releasing their tax returns or demanding Justice Department investigations of political enemies, turned out to be matters of norms, not legal obligation. And even where legal limitations were on the books, Trump proved skilled at identifying loopholes—such as when he exploited Washington, D.C.’s lack of sovereignty to violently deploy the National Guard against protesters in the capital following George Floyd’s murder in the spring of 2020.
These lessons prompted a surge of interest among scholars, lawmakers, and advocacy groups: What could be done to patch up those legal weak points, like strengthening a levee in advance of a coming flood? In 2021, the Democratically controlled House of Representatives passed the Protecting Our Democracy Act, an ambitious bill that, among other checks and balances, criminalizes corrupt use of the pardon power and limits the president’s ability to exploit emergency authorities delegated by Congress. “We owe it to the American people to place meaningful constraints on power,” Democratic Representative Adam Schiff declared in introducing the legislation.
A few of these reforms made it through the Senate. Lawmakers successfully put in place measures protecting the independence of inspectors general, the internal executive-branch watchdogs whose oversight Trump chafed against. No longer is it possible for presidents to fire inspectors general without explanation and replace them with political cronies—a tactic that Trump adopted liberally near the end of his time in office as a means of quashing politically inconvenient investigations. Separately, key changes to the 1887 Electoral Count Act—the statute whose uncertainties Trump sought to exploit in upending the electoral-vote count on January 6, 2021—will hamstring future legal efforts at election subversion. And in December 2023, Congress enacted protections that will make withdrawing from NATO significantly more difficult for Trump, requiring the consent of two-thirds of the Senate.
But these legislative successes are the exception. The bulk of the Protecting Our Democracy Act floundered in the Senate. The provisions that would have limited presidential emergency powers and handed Washington, D.C., control over its own National Guard made it tantalizingly close to a Senate vote in 2021, only to fall through at the last minute. When control of the House changed hands to the Republican Party after the 2022 midterms, the whole process ground to a halt, with the majority of GOP legislators unwilling to put their weight behind anything that might be construed as anti-Trump.
Democrats bear a hefty portion of the blame as well. Prior to the midterms, the White House chose to spend its political capital in Congress on pushing through the Inflation Reduction Act rather than on Trump-proofing the executive. Administration officials were also distinctly unenthusiastic about reforms that would have constrained presidential power and handed Congress additional tools for oversight of the executive, particularly with a Republican-led House peeking around the corner. Congressional Democrats, meanwhile, chose not to push the issue when doing so would have required breaking with the president. Ultimately, the reform package fell victim to a familiar malady in Washington: It simply wasn’t anyone’s priority.
But time has not run out. Heading into November, Congress may yet have a chance to block off some of these remaining opportunities for abuse, with bipartisan efforts under way in the Senate to restrict emergency powers and tighten loopholes in the Insurrection Act, the statute that could allow military deployments to America’s streets. The bills’ advocates must navigate a delicate task of rallying support from Democrats anxious over a Trump victory in November while not alienating Republicans who frame their support of the legislation as a matter of high-minded constitutional concerns. “The time to do this is while we’re operating under the veil of ignorance as to who will occupy the White House in 2025,” Elizabeth Goitein, a senior director of the Liberty & National Security Program at the Brennan Center for Justice, told me.
Still, the odds of success are slim. And even if these bills do somehow make it through Congress, they’re only two out of many. Given the overall failure of post-Trump reform, the remaining parts of the Protecting Our Democracy Act now function chiefly as a list of warnings about what a second-term President Trump might be able to get away with: He will still face no requirement to disclose his taxes, for example. He could dole out corrupt pardons without the additional oversight that PODA would have required. He will be able to put pressure on the Justice Department to investigate his rivals or spare his allies with no obligation to report such communications to Congress.
The constitutionally mandated powers of the presidency are such that not even the most aggressive legislation could prevent a truly committed antagonist from wreaking havoc. There’s no way to bar the president from issuing pardons at all, for example. But Trump will now be able to operate without even those few restraints that Congress could have implemented.
And he will be able to do it all while encountering far less resistance from within his administration than he did the first time around. The libraries’ worth of books written on Trump’s presidency are stuffed with anecdote after anecdote about how officials averted catastrophe by talking Trump out of absurd ideas or choosing to completely ignore the president’s orders. In one particularly extreme example, reported in Bob Woodward’s book Fear: Trump in the White House,Trump’s chief economic adviser Gary Cohn simply swiped a letter from Trump’s desk before the president had a chance to sign it, thus averting a potential diplomatic crisis with South Korea over a trade agreement.
As Trump’s term wore on, he began to replace those inconveniently freethinking aides with lackeys more willing to do his bidding. He leveraged ambiguities within the Federal Vacancies Reform Act—a workhorse of a statute meant to streamline the process of filling vacant roles within the bureaucracy—to appoint loyalists to high-ranking positions without congressional oversight. Following Trump’s presidency, experts pushed to reform the law, and the Protecting Our Democracy Act contained provisions that would have substantially narrowed the president’s ability to shuffle officials among positions. But these, too, never made it through the Senate. The result is that a second-term Trump would be able to staff his Cabinet with extremists and sycophants who might not otherwise make it through the Senate confirmation process.
“When I first got to Washington, I knew very few people,” Trump explained in an April 2024 interview with Time magazine. This time around, Trump’s most committed allies are working to vet appointees well in advance, screening candidates for their MAGA bona fides and selecting potential staff unburdened with the minimal scruples that weighed down the first Trump administration.
Trump’s effort to secure total loyalty throughout the executive branch wouldn’t end with political appointees. In the last months of Trump’s presidency, the White House rolled out an executive order—known as “Schedule F”—that would have empowered the president to strip civil-service protections from tens of thousands of career employees, making it far easier for them to be dismissed at will. The Biden administration quickly withdrew the order, but Trump would have the option to reinstate it in a second term. And as for Congress, it’s the same old story: A measure that would have blocked this attack on the civil service passed the House but never made it to a vote in the Senate.
If Trump were to push through Schedule F, he could reorient the government around personal loyalty rather than expertise. “It would be problematic among any president to have this sort of power,” Donald Moynihan, a public-policy professor who has written at length about the dangers of Schedule F, told me. “But it’s especially problematic with a president who has the express intention of engaging in retribution or using that power for what many people would describe as authoritarian purposes.”
Any effort to implement the policy will almost certainly face immediate legal challenges, likely on the grounds that the White House trampled on the rights of civil servants or overstretched the authority delegated by Congress to reorganize the bureaucracy. Safeguards put in place by the Biden administration would also require Trump to abide by certain procedural restrictions, of the same type that repeatedly tripped up the first Trump administration and led to a string of losses in the Supreme Court.
Here, as with the issue of staffing, Trump’s coterie may have learned from those previous mistakes. The first time around, Trump “didn’t understand” the procedural requirements for such policies, Anne Joseph O’Connell, a professor at Stanford Law School who studies administrative law, told me. “I think Trump 2.0 is going to know to dot the i’s and cross the t’s.”
And the courts, themselves reshaped by Trump during his first term, may be less interested in pushing back against him. Trump’s appointment of more than 200 federal judges pulled the judiciary far to the right, particularly in the appellate courts and the Supreme Court. Previously, the alliance between Trump and the conservative legal movement has typically been one of convenience, as Trump learned in 2020 when his efforts to overturn the election were rejected by judges whom he himself had appointed to the bench. But the Supreme Court’s shocking decision establishing broad presidential immunity from criminal prosecution—and, in doing so, potentially shielding Trump from serious legal accountability for his involvement in January 6—suggests an increasing alignment between Trump and the Court’s right-wing supermajority. Steve Vladeck, a law professor at Georgetown University and a close watcher of the Court, wrote in his newsletter last month that the ruling calls into doubt whether any of the Republican-appointed justices “will vote against their ideological or political preferences in a case in which it really matters.”
The motivations behind the Court’s protection of Trump are very different from the reasons that Congress and the White House neglected to pursue post-Trump reform. Viewed together, though, both failures reflect a broader unwillingness or inability across American institutions to adequately wrestle with the danger he poses. The story of Trump’s rise is in large part the story of governing bodies abdicating their responsibility to respond to his abuses in the hope that someone else will take care of it—including the Republican Party’s failure to halt his run for president in 2016 and 2024, the Senate’s failure to convict and bar him from office following both impeachments, and the Justice Department’s failure to move with sufficient speed to investigate and bring charges against him over January 6, such that Americans will almost certainly head to the polls in November without resolution in that criminal case.
In the face of this institutional failure, the last check against the abuses of a second Trump presidency will be what it has always been: the people. It’s not a coincidence that the most direct legal consequence Trump has felt came from his conviction in the New York hush-money case, at the hands of a jury of 12 regular New Yorkers. The first Trump administration saw a lasting surge of political participation among Americans opposed to Trump, featuring some of the largest protests in American history and increased interest among anti-Trump voters, especially suburban women, in political organizing and running for office. The 2018 midterm elections saw a record number of female candidates win office. Women rushed to register to vote following the Supreme Court’s 2022 decision overturning Roe v. Wade,allowing Democrats to gain control of the Senate and nearly hold on to the House in that year’s midterms despite predictions of a “red wave.”
Energy among this coalition seemed to be flagging at the prospect of a Trump-Biden rematch—but since Harris stepped into the race, Democratic enthusiasm has soared, backed by some of the same activist groups founded in response to Trump’s 2016 victory. In every election since 2016, Americans have turned out to block Trump and the Trump-era Republican Party from power. They may yet manage it again in 2024. In a system that’s still democratic, this public outcry is the most potent possible force against a would-be dictator.
Even if Harris does win in November, the work of guarding against Trumpism can’t stop there. To rest easy under a Harris administration would be to make the same mistake that Democrats did following Trump’s loss in 2020 when they failed to pursue much-needed reforms. Beyond picking up the dropped threads of the Protecting Our Democracy Act, bolstering American resilience against authoritarianism will also require maintaining this widespread engagement in the broader work of democratic life. Although Trump thrives on attention, public apathy is his greatest asset. The same may well be true of whichever inevitable successor takes up the mantle of his authoritarian project after he departs from the scene.
