Donald Trump tests the system of checks and balances just weeks after election
WASHINGTON – American democracy hinges on the idea that each branch of government prevents the others from taking too much power.
Since his Election Day victory, President-elect Donald Trump has already suggested he is ready to push the limits of those checks and balances, setting up a potential constitutional showdown with a Congress controlled by members of his own party and a Supreme Court with a conservative supermajority.
Trump has demanded Republicans in the U.S. Senate agree to "recess appointments," in which Congress allows the incoming president to unilaterally appoint his nominees without their approval. If Congress doesn't agree, Trump may try to use an untested constitutional authority to do it anyway, though it was unclear whether he planned to do so.
The former and future president's allies – Elon Musk and Vivek Ramaswamy, who have been tapped to lead the newly created Department of Government Efficiency – also say he wants to ignore congressional directives to spend on federal programs, including drastically reducing the federal workforce. He also has said he wants to eliminate agencies such as the Department of Education.
Combined, the early signs point to Trump's second term as a test for the nation's nearly 250-year-old constitutional system that could blow apart the traditional separation of powers.
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Recent presidents have long sought to use and expand executive power. If Trump succeeds, it could set him up as the supreme authority in Washington, D.C., according to legal experts, a former Trump administration lawyer and select Republican senators, including one who said it reflects a "disturbing" trend.
“In the transition, he's made it pretty clear that he intends to rule with absolute power as much as possible,” said Lindsay Chervinsky, a senior fellow at the Center for Presidential History at Southern Methodist University. “I think he views power as sort of all-encompassing and is willing to break norms and precedents and perhaps even sort of undermine institutions in order to achieve those goals.”
And compared with his first administration – during and after which he survived two impeachment trials – it's less clear whether the Republican majorities in Congress or the conservative justices on the Supreme Court will be willing to fight for the power of their own branches of government as Trump's power within the Republican Party has grown.
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The question has created a divide within the GOP as some lawmakers raise concerns about potential overreach, but many more argue it's time for the party to get on board with Trump's agenda.
"Whatever that is, we need to embrace it. All of it. Every single word," Rep. Troy Nehls, R-Texas, told reporters last week. "If Donald Trump says jump 3 feet high and scratch your head, we all jump 3 feet high and scratch our heads."
Appointing Cabinet nominees
Shortly after he was elected, Trump demanded that the next Senate Republican leader agree to "recess appointments," in which the chamber would adjourn and allow his Cabinet and other picks to be temporarily approved without an arduous confirmation process.
It quickly became clear why: Several of Trump's choices – including Tulsi Gabbard for director of national intelligence, Pete Hegseth for secretary of defense and former Rep. Matt Gaetz for attorney general – have proven controversial, putting senators in the uncomfortable position of deciding whether to stand between Trump and what he wants.
Trump's team has also so far bypassed traditional vetting procedures for nominees, including FBI background checks.
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Gaetz, battling allegations of sexual misconduct with a minor, dropped out when it became clear he wouldn't get enough support to be confirmed – which may indicate Trump still plans to get his Cabinet confirmed the traditional way.
But in the case that Senate Republicans reject another nominee, it's possible that Trump could try to use an untested provision in the Constitution to forcibly adjourn Congress and appoint his nominees. That would require Senate Republicans to resist by repeatedly coming back into session to stop it.
The possibility has senators thinking about their constitutional role to advise on and consent to the president's picks. Sen. Kevin Cramer, R-N.D., told USA TODAY the Gaetz nomination offered an early test to how the president-elect will respond to pushback.
"He's already proven that he's going to respond in the right way, so a recess appointment for a Cabinet secretary would be pretty strongly resisted by those of us that protect the separation of powers," he said.
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Asked whether he believes there are enough Republicans in the Senate that agree with him, he said: "I think we would protect the integrity of the institution."
Maine Sen. Susan Collins, a moderate Republican who did not support Trump's 2024 White House bid, said she has been "taking a deep dive" into the constitutional question of recess appointments.
"I feel strongly about preserving the powers of the legislative branch," she told USA TODAY. "I've seen in my years in the Senate an erosion of congressional power toward the executive branch. And regardless of whether it's President Biden or President Trump, that is a trend that is disturbing."
Cutting regulations, agencies
Musk and Ramaswamy have detailed a plan to eliminate regulations they say have exceeded congressional authority and argued their approach is the opposite of a power grab.
"When the president nullifies thousands of such regulations, critics will allege executive overreach. In fact, it will be correcting the executive overreach of thousands of regulations promulgated by administrative fiat that were never authorized by Congress," they wrote in a Wall Street Journal opinion column. "The president owes lawmaking deference to Congress, not to bureaucrats deep within federal agencies."
In the same piece, they also argue the president has the power to curb government spending that has been authorized by Congress, despite laws that indicate otherwise.
"Mr. Trump has previously suggested this statute is unconstitutional, and we believe the current Supreme Court would likely side with him on this question," they wrote.
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Former Trump White House attorney Ty Cobb said no one in American history has stressed the constitution the way Trump has.
Eliminating spending approved by Congress is an example of how Trump “doesn’t see a line between his authority and anybody else,” he said.
“That’s his view of the world. … The president’s all-powerful,” Cobb said.
“Trump does believe the president is an all-powerful position," Cobb said. "He relies only on the courts to halt any power grabs he may not be entitled to.”
A history of power grabs
Other presidents have sought to get around curbs on their power. Former President Franklin Delano Roosevelt famously tried to expand the number of Supreme Court justices to get a more favorable court after his New Deal legislation was struck down.
In the wake of the Sept. 11, 2001, terrorist attacks, President George W. Bush’s administration decided anti-torture laws didn’t apply to its interrogation techniques at Guantanamo Bay and allowed surveillance of U.S. citizens and foreigners in the country. President Barack Obama allowed military strikes against Islamic State group militants without seeking congressional approval.
Past presidents have also used recess appointments, although not at the scale Trump seems to be contemplating, and Republicans have long talked about getting rid of the Education Department. Even cutting spending approved by Congress isn’t “altogether surprising,” said William Howell, a political scientist at the University of Chicago.
But it would be abnormal for Trump to “unilaterally take a hatchet to portions of the administrative state" that Congress created "in an effort to undermine their ability to fulfill their basic core functions," he said.
Trying to ram controversial Cabinet picks through Congress is a power play by Trump, Howell noted, but it’s part of a pattern that extends back many years through Trump’s takeover of the GOP.
"It's hard for me to think of another instance where a party collapsed so completely around the will and… interests of an individual in the way that the Republican Party has collapsed around Trump," Howell said. “And so now he wants to see that through, and to say: 'I get to build my administration in the same image.'"
(This story has been updated with more information.)
This article originally appeared on USA TODAY: Showdown ahead? Donald Trump tests Congress on checks and balances