In the Atlantic, Paul Rosenzweig asks what a Democratic president could do with the unilateral executive powers that the Supreme Court seems willing to grant Trump–assuming that the “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.”
As Rosenzweig notes, a Democrat would want to rebuild or build things, whereas Trump’s new powers mostly involve canceling or blocking things. Therefore, a Democrat would have a harder job than Trump has. Rosenzweig also notes that it will be a challenge to fill vacant positions that are authorized by statute. “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?”
I would add that any president must refrain from crossing certain ethical lines, regardless of what the courts may rule. For example, selecting individuals to be prosecuted violates the rule of law; the government should only investigate alleged crimes, not choose people as targets for legal action. No politician should decide ex ante to prosecute Elon Musk or Steven Miller or any other individual.
But I think Rosenzweig somewhat underestimates the opportunities for the next administration. Here are four:
- Rebuilding the civil service
Hiring federal workers will be a challenge, but a worthy one. Yes, the Trump cuts have unjustly ended careers and caused massive damage. At the same time, the federal civil service has long suffered from a severe problem of generational replacement, hiring far too few young people. This is one reason that some federal agencies and offices have been sclerotic and ineffective. To attract young and talented people into federal service will require leadership. We should expect that from our next president. The result could be a better executive branch.
(Yes, federal jobs are less secure, now that the president seems to have the right to lay off civil servants; but government positions are at least as secure as jobs in the private sector.)
- Restoring accountability
Although the rule of law does not permit selecting individuals for prosecution, it requires accountability. The difference lies in process. The next administration could create commissions, offices, and/or tribunals that investigate corruption and illegality without fear or favor. Individuals and organizations that allege that they were abused by the Biden Administration or its predecessors could come forward, not just those with complaints against Trump and his people. The White House would have no say in the decisions.
- It would be worth considering a Truth and Reconciliation model.
- In addition to investigating crimes, the administration could investigate federal employees and contractors and terminate those who crossed ethical lines–with due process. Companies that gave things of value to Trump would also be at risk of bribery charges.
- It would be worth trying to waive sovereign immunity so that aggrieved parties could sue the government for damages. There is no question that the Trump Administration has intentionally caused costly harms. (And possibly previous administration did so as well.) I am not sure whether courts would allow plaintiffs to sue without Congressional approval. But it would be worth testing a strategy of unilaterally waiving the sovereign immunity defense.
- Judicious cuts
There are pieces of the federal government that a responsible center-left or progressive administration should cut by fiat, using the powers that Trump has accumulated. For example, I would consider zeroing out Enforcement and Removal Operations (ERO) within ICE. The benefits would far exceed any disadvantages.
- Leverage
A responsible president of any party should not fire people or cut spending just to achieve political objectives. For example, a responsible president should not threaten to fire all the federal workers in a district unless its representative votes with the administration. That would harm innocent workers and clients.
However, leverage can be used more judiciously. Terminating all positions in Enforcement and Removal Operations would be a net benefit for the public; it could also be a bargaining chip in negotiations about immigration reform. A president could even threaten to relocate federal jobs of certain types out of specific districts. For example, there are nearly 1,000 Small Business Development Centers (SBDCs), 50 federal Rural Development State Offices, and more than 360 IRS Taxpayer Assistance Centers (TACs). Maybe a Member of Congress would like those to leave his district? Or would the Member prefer to vote “aye” on the president’s bill?
I am not sure I want this kind of president. There is a risk that playing hardball with the new presidential powers would further degrade constitutional norms. But perhaps such leverage would be ethical if the proposed legislation were valuable and the collateral damage were strictly limited.
Going beyond specific bills, I would consider proposing a grand bargain. We need a much stronger and more capable Congress, a more resilient civil service, and a more rule-bound presidency. Since the courts are responsible for unleashing the president, laws won’t suffice to change the balance; we probably need constitutional amendments. I could see a progressive or center-left president saying: “Pass these amendments and limit my discretion. Meanwhile, I will use my unilateral powers to the full.”
A raft of ambitious policies would be a success. A restored constitutional balance would be a success. And it might be possible to get one followed by the other.
See also: repairing the damage of federal actions; Gen Z and rebuilding the federal workforce; a generational call to rebuild; and rule of law means more than obeying laws: a richer vision to guide post-Trump reconstruction