How Donald Trump's Power Will Be Checked

It starts with the U.S. Constitution.
Alex Wong/Getty Images
Khizr Khan, holding a copy of the U.S. Constitution at the Democratic National Convention in July

Donald Trump will become leader of the country. The Republicans will retain both chambers of the U.S. Congress. The next Supreme Court justice will swing the high court back to conservatives. All that being noted, it would be a mistake to believe Trump’s power will be unchecked over the next four years.

The results of Tuesday’s election is a tough pill for progressives in the country and may frighten those who during the campaign heard about everything from a proposed Muslim immigration ban to the promised jailing of opponent Hillary Clinton. One thing unchanged, however, is the U.S. Constitution. Those fearing autocratic rule in a Trump Administration can at least place some hope in the judicial branch of government.

Yes, Trump will likely be able to appoint Justice Antonin Scalia’s replacement, but the Supreme Court, as powerful as it may be, represents just a small part of the federal judiciary. The high court entertains just a few dozen cases per year. Meanwhile, because Democrats have held the presidency in 16 of the past 24 years, district courts and lower appeals courts adjudicating thousands of cases are packed with judges who owe their lifelong seats to Bill Clinton and Barack Obama. In fact, nine of the 13 federal circuits now have more Democrat-appointed judges, compared to just three of 13 when Obama took office.

Thanks in part to filibuster reforms by the U.S. Senate when Harry Reid was majority leader, the score will begin to even as judicial vacancies occur, but in the meantime, those opposing Trump's moves may find friendly-forums like the 9th Circuit (which includes California), the 2nd Circuit (which includes New York) and the DC Circuit. These three jurisdictions currently are stacked 2-to-1 with Democrat appointees.

Trump talks a big game about ripping up international treaties and "opening up" libel laws, but he will undoubtedly be challenged in court. In fact, Democrats, now in the minority in the House and Senate, should already be looking to the courts as a venue to wage political war. Even moves that could generate broad political agreement — like Trump's pledge to block AT&T's proposed acquisition of Time Warner because, he says, "it’s too much concentration of power in the hands of too few" — could be subject to judicial review. When that happens, Trump will come face-to-face with those who perhaps share the sensibilities of Nevada judge Gloria Sturman, who on Election Day presided over a Trump campaign demand for information about poll workers overseeing early voting in Nevada's Hispanic-heavy precincts.

"Have you watched Twitter? Do you watch any cable news shows? People can get information and harass them," the judge said in rejecting Trump's request for records.

Certainly, the judiciary's power isn't limitless, as the framers of the U.S. Constitution intended. There will definitely be areas where political opponents can do nothing but complain loudly and bide their time.

A Trump Administration, for instance, could mean a more relaxed regulatory state. The FCC may no longer attempt to enforce net neutrality. The EPA could scrap initiatives aimed at curbing carbon emissions. And so forth. Additionally, those in Trump's cabinet will bring their own agenda. For example, Rudy Giuliani leading the Justice Department could place greater emphasis on national security to the detriment of investigations and prosecutions of corporate fraud and antitrust activity.

What then?

The fathers of the nation didn't explicitly discuss the role of the so-called "fourth branch of government" — interest groups, the media and the public — in the U.S. Constitution, but there's enough in the First Amendment to protect most of their activities. As such, Trump's hostile relationship with the press is likely to continue throughout his time in office. He regularly voices his opinion that the media is "dishonest," and it's true that much of the public agrees there's rampant bias in the reporting corps. But a wholesale rewriting of libel laws would face a major court battle.

Then again, Trump does care about validation. What else explains why he once sued a journalist for questioning his asserted net worth? Or felt the need to suck up to Billy Bush of all people on an Access Hollywood bus?

If skeptical judges rein in his worst impulses, Trump's own bottomless need for approval could provide the greatest check on his power. The president-elect is defensive and combative as heck. Still, he did tend to fire the right people on The Apprentice when people screwed up. That's something, no?

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