This article appears in the February 2025 issue of The American Prospect magazine. Subscribe here.
As a first-term president and more recently as a presidential candidate, Donald Trump showed little understanding of the Constitution and even less interest in complying with it. Many of the proposals he has been advocating are clearly unconstitutional under well-established law. Some are chilling for how they would change fundamental aspects of separation of powers, for how they would infringe individual liberties, and for how they would harm people’s lives.
As was not the case during his first term as president, when some of his worst impulses were checked by those around him, he now seems surrounded by people whose primary qualification is loyalty to Trump. Does anyone expect Kash Patel to stop Trump from using the FBI against his political foes? Does anyone think that Pam Bondi will say no to Trump, as at times even Jeff Sessions and Bill Barr did as attorneys general during the first Trump presidency? Does anyone imagine Pete Hegseth or Tulsi Gabbard limiting Trump’s use of the military and the intelligence agencies in irresponsible and unconstitutional ways?
Congress is limited in its ability to check specific excesses of power by a president and, with a Republican majority in the House and the Senate, seems unlikely to pass new laws to restrict Trump’s actions. It will take four Republican senators to join the 47 Democrats to stand up to Trump. It is hard to identify who they might be, and even harder to identify the Republican House members who might vote to impose restrictions on him.
In consequence, when Trump acts unconstitutionally, the only plausible check will have to come from the courts. But will the judiciary, and especially the Supreme Court, enforce the Constitution against Donald Trump?
The Supreme Court has had at best a mixed record of being willing to uphold the Constitution in Trump-related litigation. During Trump’s first term as president, in Trump v. Hawaii, in a terrible decision, the Court upheld Trump’s Muslim travel ban. In a 5-4 ruling, split along ideological lines, the Court allowed a Trump executive proclamation that banned individuals from designated countries that were predominantly Muslim from entering the United States. The Court deferred to Trump’s assertion of national security and ignored the overwhelming evidence that the executive action was taken to implement Trump’s repeated campaign promise of a Muslim ban.
More recently, in 2024, in Trump v. Anderson, the Supreme Court refused to enforce Section 3 of the 14th Amendment, which disqualifies a person from holding civil office if he took an oath of office and then participates in a rebellion or insurrection. The Colorado Supreme Court held that Trump was disqualified under this provision from running for president by virtue of his actions on January 6th. The Supreme Court, however, ruled in favor of Trump, effectively nullifying Section 3 of the 14th Amendment by holding that the courts cannot enforce it.
Trump takes office knowing he cannot be criminally prosecuted even for blatantly illegal acts.
And on July 1, in a decision that belongs in the Hall of Shame of all-time bad Supreme Court rulings, the Court held in Trump v. United States that a president has absolute immunity from criminal prosecution for any official acts taken pursuant to the Constitution or a statute. Coming from a Court where a majority of the justices are professed originalists who pledge fidelity to the Constitution’s original meaning, it was astounding to see them adopt a view of unchecked presidential power so completely at odds with the framers’ desire to reject royal prerogatives. As Justice Sonia Sotomayor explained in her dissent, the Court’s decision means that a president would have absolute immunity if he ordered the Navy SEALs to assassinate a political rival, or took bribes in exchange for pardons, or used the Justice Department to get retribution by prosecuting his political rivals.
Trump thus takes office knowing he cannot be criminally prosecuted even for blatantly illegal acts.
To be fair, sometimes the Supreme Court stood up to Trump in his first term. The Court ruled that Trump could not rescind the Deferred Action for Childhood Arrivals (DACA) program without following the procedural requirements of the federal Administrative Procedure Act. Additionally, the Court held that the Trump Department of Commerce acted improperly in adding a question about citizenship to the 2020 census forms. But it also should be remembered that both of these were 5-4 decisions against Trump when Justice Ruth Bader Ginsburg was still on the Court and part of the majority. It is an even more conservative Court today.
This history certainly provides a basis for skepticism that the justices will be willing to stand up to Trump and enforce the Constitution. So it is worth considering what Trump might do and how these actions might fare in the courts. The list of presidential actions to be worried about seems endless, but here are some to expect.
Impoundment of funds. Trump has talked about eliminating federal agencies, such as the Department of Education. But agencies are created by federal statute and can be abolished only by a new federal law. It seems unlikely that Congress will go along with this plan because many important federal statutes are enforced by this and other federal departments.
RITZAU SCANPIX/SIPA USA VIA AP
Trump’s threat to withhold funds to Ukraine during his first term was an illegal impoundment, and the basis for his first impeachment.
Elon Musk and Vivek Ramaswamy, the co-directors of Trump’s Department of Government Efficiency (until Ramaswamy was ditched right before the inauguration), have spoken of radical reductions in federal spending. Musk has talked about cutting $2 trillion from the federal budget, and Ramaswamy has said that the federal workforce should be cut by 75 percent. It is inconceivable that Congress would approve such spending reductions. It would require drastic cuts in Social Security, Medicare, and defense spending.
So Trump and Musk have embraced a way to defund federal agencies and cut spending without Congress: presidential impoundment of funds. Impoundment occurs when the president refuses to spend federal money that has been appropriated in a federal statute. The practice is an unconstitutional usurpation of Congress’s power of the purse, and it violates the Impoundment Control Act of 1974.
President Trump engaged in illegal impoundment in his first term when he withheld military aid that had been appropriated to Ukraine until its president, Volodymyr Zelensky, agreed to investigate Joe Biden—which Zelensky did not do. This was the basis for the first impeachment of President Trump by the House of Representatives.
As a candidate in 2024, Trump explicitly embraced controlling federal spending by impounding funds. Musk and Ramaswamy also did so in an op-ed that they published in The Wall Street Journal.
Under Article I, Section 8 of the Constitution, the spending power is assigned to Congress. To be sure, the president has a role in this process; he can opt to veto spending bills passed by Congress. But once a spending bill has been adopted, whether with the president’s signature or over his veto, the president has no authority to refuse to spend the money.
The Supreme Court long has made clear that separation of powers is violated when one branch of government usurps the powers of another. That is exactly what impoundment does: It gives the president control over federal spending and undermines Congress’s constitutional power over the purse.
Impoundment is not new. Thomas Jefferson was the first president to impound federal funds. But Richard Nixon used it more extensively than his predecessors, and his impoundments were challenged in courts. Almost without exception, the courts found that his impoundments violated the law, including the United States Supreme Court in Train v. City of New York (1975). In that case, the Court ruled that Nixon lacked the authority to impound federal monetary assistance under the Federal Water Pollution Control Act Amendments of 1972, a program that he had vetoed, only to see Congress override his veto. The Court unanimously held that the law gave President Nixon no power to impound funds appropriated by a federal statute.
The issue of impoundment has rarely resurfaced in the last half-century because Congress, in 1974, passed a statute, the Impoundment Control Act, that outlaws such presidential actions. The act was adopted in reaction to the repeated impoundments by the Nixon administration and actually was signed into law by Nixon.
The law forbids presidential impoundment of funds, but allows the president to propose rescissions of money appropriated by federal law. If the president wishes to rescind spending, he must send a special message to Congress identifying the amount of the proposed rescission, the reasons for it, and the budgetary, economic, and programmatic effects of the rescission. After the president sends such a message to Congress, he may withhold funding for up to 45 days. But if Congress does not approve the rescission within this time period, any withheld funds must be disbursed. The act also allows the president to defer federal spending in very narrow circumstances, but again with required notifications to Congress.
Musk and Ramaswamy in their Wall Street Journal op-ed argued that the Impoundment Control Act is an unconstitutional usurpation of presidential power and would likely be struck down by the Supreme Court.
Their constitutional argument is both wrong and dangerous. It is wrong because impoundment itself is unconstitutional, even without the Impoundment Control Act, as the president has no such authority under the Constitution, which exclusively delegates the spending power to Congress. Moreover, as Justice Robert Jackson observed in his landmark opinion about separation of powers in Youngstown Sheet and Tube v. Sawyer (1952), the president’s power is at its lowest ebb when he is violating a federal law. The Impoundment Control Act is a clearly constitutional law to protect Congress’s control over federal spending.
It would be terribly dangerous for the courts to declare the Impoundment Control Act unconstitutional and give the president such great control over federal expenditures. The Constitution assigns the spending power to Congress because its authors wanted a broad-based elected branch of government to control how federal money is disbursed. If the president can impound funds at will, there will be an enormous shift of unchecked power to one person.
Trump and Musk have been clear about their plans to use impoundment, and the question is whether the courts will stop this blatant power grab, which would fundamentally alter separation of powers.
The Supreme Court repeatedly has held that the federal government cannot force cities and states to enforce federal mandates.
Recess appointments. Several times, Trump has suggested that he might choose to make recess appointments of cabinet officials and others requiring confirmation, rather than have these nominees confirmed by the United States Senate as the Constitution requires. This would negate a basic check created by the Constitution: the need for Senate confirmation of presidential appointees. Given some of Trump’s nominees, and their dubious qualifications, it is easy to see why he sees recess appointments as a way to easily get them into office.
The Constitution actually provides a way that he could do this. Article II, Section 3 of the Constitution says that if the House and the Senate disagree about whether to adjourn, the president “may adjourn them to such time as he shall think proper.” Trump’s plan would be to ask Republican leaders of the House and the Senate to disagree about whether to recess. He then could adjourn Congress until he called it back into session and take advantage of another provision of the Constitution which allows him to make recess appointments that last until the end of the two-year session of Congress.
It is frightening to imagine the president putting Congress into indefinite recess and using this to circumvent a vital constitutional check on the president’s appointment power: the need for Senate approvals. It is imperative that members of Congress not agree to this power ploy and that they take their constitutional duties seriously. Especially given the controversial nature of many of Trump’s appointees, Senate consideration and confirmation is vital. No president in American history has ever tried to evade the need for Senate confirmation of the cabinet in this way and Congress must not allow Trump to do so now.
Actions against noncitizens. Central to Trump’s campaign, and to virtually every speech he has given, have been his promises and threats with regard to immigration. He has talked about ending birthright citizenship, about mass deportations of undocumented individuals and creating deportation camps, of forcing state and local governments to cooperate with federal immigration authorities, of using the Alien Enemies Act of 1798 to deport even those lawfully in the country, and even of deploying the military to carry out his immigration policies. Cumulatively, these would terrorize noncitizens and citizens alike, and would change the country in frightening ways.
While all these actions are unwise, many of them would also be unquestionably unconstitutional. Although Trump has pledged to end birthright citizenship—which provides that every person born in the United States is an American citizen—he has no authority to do so. There has been speculation that Trump will issue an executive order directing federal agencies that issue citizenship documents, like the Department of State or the Department of Homeland Security, to deny that documentation to the children of unauthorized immigrants in an effort to deny them American citizenship altogether.
But this is blatantly unconstitutional. Section 1 of the 14th Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This was adopted in 1868 to overrule the Supreme Court’s tragic decision in Dred Scott v. Sandford, which held that enslaved individuals were not citizens even if born in the United States. Section 1 of the 14th Amendment is an unequivocal grant of citizenship to all born in this country. The phrase “and subject to the jurisdiction thereof” is to ensure that children born to Americans in foreign countries while serving in the military or working in an embassy also are deemed citizens.
The Supreme Court long ago held that Section 1 of the 14th Amendment bestows citizenship on all born in the United States. In 1898, in United States v. Wong Kim Ark, the Court held that children born in the United States are citizens regardless of their parents’ immigration status.
This decision is binding precedent on lower federal courts, so they should be expected to strike down any Trump actions to the contrary. And the hope must be that even the Supreme Court, which has been willing to overrule important precedents, will adhere to the text of Section 1 of the 14th Amendment and say no to Trump on this.
MARCO UGARTE/AP PHOTO
Trump’s allies have suggested ending birthright citizenship, which Section 1 of the 14th Amendment bestows.
It will be harder to challenge Trump’s efforts to engage in mass deportations, but the way he opts to do it certainly can violate the Constitution. The federal government has the authority to deport those who are unlawfully in this country. But the Supreme Court has been clear that individuals, including noncitizens, have a right to due process before being deported, including the right to be informed of the charges against them, the right to an attorney, and the right to present evidence in their defense.
Practically, the limit on mass deportations may be the lack of sufficient immigration officials, detention facilities, and immigration judges to carry them out. One way that the Trump administration is likely to try to augment its resources is to force state and local governments to assist in enforcing federal immigration laws. During the first Trump administration, it adopted a policy to deny federal law enforcement funds to police departments that did not assist United States Immigration and Customs Enforcement by turning over undocumented individuals.
On December 23, 2024, Stephen Miller, who has been named Trump’s deputy chief of staff for policy, through his America First Legal, sent letters to 249 elected state and local officials in jurisdictions with sanctuary policies. These are governments that have laws prohibiting their cooperation with ICE and forbidding their schools, public hospitals, and police from turning over undocumented individuals to the federal government or providing information about them. These policies make great sense because otherwise undocumented individuals who are ill, including with communicable diseases, won’t go to public hospitals for treatment. Parents will be reluctant to send their children to school. Crime victims who are undocumented will hesitate before reporting crimes for fear that they could then face being deported.
Miller’s letter said that people living illegally in the United States are subject to removal and that it is a federal crime to conceal, harbor, or shield them. It is an obvious attempt to try to intimidate state and local governments into cooperating with Trump’s deportation efforts. This is sure to lead to a conflict between the Trump administration and progressive cities and states, as it did during the first Trump term. The Supreme Court repeatedly has held that the federal government cannot force cities and states to adopt laws or to enforce federal mandates. For example, the Court declared unconstitutional a provision of the federal Brady Handgun Control Act which required that state and local law enforcement personnel do background checks before issuing gun permits. In Printz v. United States (1997), the Court declared this unconstitutional as impermissibly commandeering state and local governments.
Even when Congress has tried to induce action by putting strings on federal grants, the Supreme Court has said that such provisions are unconstitutional if they are unduly coercive. Most famously, the Court struck down a provision of the Patient Protection and Affordable Care Act (Obamacare) which required that states receiving federal funds expand their Medicaid eligibility. The Court said that illegally amounted to “dragooning” the states in violation of their sovereignty.
During the first Trump administration, efforts to require state and local law enforcement to cooperate with ICE were challenged on this basis. Most lower courts, including the United States Court of Appeals for the Ninth Circuit, declared this unconstitutional. But it never was ruled on by the Supreme Court and the issue is sure to arise again.
Trump has made clear that he believes he has the power to fire even federal workers protected by the Civil Service Act.
This time around, Trump has talked about even more extreme measures to enforce his immigration policies. He has spoken of invoking the Alien Enemies Act of 1798. The law gives the president the power to detain or deport the citizens of an enemy nation. The authority includes power over both the undocumented and those who are lawfully in the United States.
The statute, however, applies only if there is a declared war or when a foreign government threatens or undertakes an invasion of the United States. It has been invoked just three times in American history: during the War of 1812, World War I, and World War II. It was used to justify the internment of Japanese Americans during World War II.
The Alien Enemies Act has no relevance now. There is no declared war and no foreign government has threatened to invade the United States. Any invocation by President Trump should be immediately invalidated by the courts.
Using the military within the United States. Among the most chilling ideas advanced by Trump is his using the military domestically to enforce immigration laws and more generally to carry out his policies. In the spring of 2020, during the protests following the murder of George Floyd, Trump apparently wanted to use the military to quell demonstrations—although (or, in Trump’s mind, perhaps because) using the military against dissenters is common practice in the most authoritarian countries.
Can he do it? The Posse Comitatus Act forbids the United States military—including federal armed forces and National Guard troops who have been called into federal service—from taking part in civilian law enforcement. This law reflects a deeply embedded tradition in the United States that liberty and democracy are threatened by the military’s involvement in domestic matters. But the Posse Comitatus Act has an exception permitting the domestic use of the armed forces if authorized by a federal statute.
Trump has talked about using authority under the Insurrection Act, a federal law initially adopted early in American history, to get around the Posse Comitatus Act and to use the military to carry out his policies. The Insurrection Act provides the president the authority to use the military domestically in three situations. Section 251 permits the president to use the military if a state legislature, or a governor if the legislature cannot meet, requests federal help to quell an insurrection.
Section 252 of the Insurrection Act authorizes the president to use the military to “enforce the laws” of the United States or to “suppress the rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.”
Section 253 permits the use of the military in a state to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “so hinders the execution of the laws” that any portion of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right. This was the authority President Dwight Eisenhower invoked to use troops to ensure the desegregation of the Little Rock, Arkansas, public schools in 1957.
Most broadly, Section 253 also permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This is so expansively written that it conceivably could allow the president to call out troops against any conspiracy to violate a federal law.
These provisions give the president frighteningly broad powers to use the military domestically. In fact, in 1827, in Martin v. Mott, the Supreme Court ruled that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and … his decision is conclusive upon all other persons.”
Thankfully, in the last half-century, presidents rarely have invoked the Insurrection Act. It was last used in 1992, when California Gov. Pete Wilson requested military aid from President George H.W. Bush when there were riots in Los Angeles following the acquittal of four police officers who had been charged in the beating of Rodney King.
Although there have been many calls to modify or repeal the Insurrection Act, that has not happened. And it could be invoked by President Trump to use the military within the United States to carry out his policies. Then it would be the responsibility of the courts to limit the president’s domestic use of the military by narrowly construing the Insurrection Act.
CHRIS SZAGOLA/AP PHOTO
The law says the military cannot engage in civilian law enforcement, but the Insurrection Act provides an exception.
Controlling federal agencies. Donald Trump repeatedly has expressed a desire to control the federal bureaucracy to ensure that it hews to his wishes. For cabinet agencies, the president has the authority to fire cabinet secretaries and top officials and then to replace them, subject to Senate approval, with those of his choosing.
But outside of these political appointees, the president’s legal authority is much more limited, though Trump has made clear that he will claim greater power and test the law in this area. This might initially be directed against the officials who head federal regulatory agencies for terms fixed by federal statutes, and who can be removed only for “just cause.” This applies to leaders of such important federal agencies as the National Labor Relations Board, the Securities and Exchange Commission, the Federal Trade Commission, and many more.
In Humphrey’s Executor v. United States, in 1935, the Supreme Court held that it is constitutional for Congress to limit presidential removal of these agency officials. In that case, the Court ruled that President Franklin Roosevelt lacked the power to fire a commissioner of the Federal Trade Commission.
Some have speculated that the Supreme Court, which in recent years has acted aggressively to limit federal agency powers, might be ready to reconsider Humphrey’s Executor, and to hold that Congress cannot limit the president’s power to remove agency heads. In fact, in 2020, in Seila Law LLC v. Consumer Financial Protection Bureau, the Court declared that it was unconstitutional for Congress to prevent the president from firing the head of the Consumer Financial Protection Bureau. However, the Court also ruled that Humphrey’s Executor allowed Congress to limit the removal of members of a multimember body, like the Federal Trade Commission, but that it did not apply to an agency where there was one person in charge, like the CFPB.
From the perspective of the Constitution, it is hard to see why the president’s power is different depending on the number of people running the agency. It is thus easy to imagine Trump looking for the test case where he will try to fire members of a federal regulatory commission even though their tenure is protected by federal law.
Many thought that the National Labor Relations Board would be a likely target for such Trump actions. But in December, Sens. Joe Manchin and Kyrsten Sinema refused to go along with Democratic senators in confirming Lauren McFerran, then the outgoing chair of the NLRB, for another term. Had McFerran been confirmed, there would have been a 3-2 Democratic majority on the Board for the first two years of the Trump presidency. It was speculated that this might cause Trump to try to remove one or more of the Democratic appointees, notwithstanding the federal law that fixes the length of their terms and thus limits their firing. Now, Trump will fill this seat on the NLRB and it will have a Republican majority. But there is every reason to expect that some other federal agency will draw his ire and he will create a test case to establish his power to fire all executive officials.
Since the 1930s, the Supreme Court has recognized the importance of Congress creating federal agencies whose top officials have some independence from the president. Now, however, a majority of the justices appear to believe that there is a “unitary executive,” with the president in control of every aspect of the executive branch of government. This, together with the conservative justices’ hostility to the administrative state, may make it willing to overrule precedent and allow the president to fire any agency official.
Illustration by Mike Haddad
At the same time, Trump has made clear that he believes he has the power to fire even federal workers protected by the Civil Service Act. The central idea of civil service—that federal employees should be chosen based on merit and protected from political reprisals—is not new. The Pendleton Act was adopted in 1883 to ensure that most employees within the federal government are chosen on the basis of merit and not political patronage.
In October 2020, President Trump adopted an unprecedented attack on the civil service system. Executive Order 13957 created a new “Schedule F” classification, and deemed these to be positions that were outside the civil service. Trump invoked a provision of federal law that exempts from civil service protections positions “of a confidential, policy-determining, policy-making, or policy-advocating character.” This always has been understood, by both Democratic and Republican administrations, to apply to a small number of positions traditionally filled by political appointees. In recent years, the number of such positions has been roughly 1,200.
By contrast, Trump’s executive order reclassified and deprived civil service protections for a huge swath of federal employees. Estimates of its scope range from 50,000 to hundreds of thousands of government workers who could be replaced by the president, including for political reasons.
President Biden, on taking office, rescinded the Trump executive order, but Trump has said that he would reinstitute Schedule F on “day one” of his new administration. This would decimate the civil service and allow Trump to exercise unprecedented control over the federal workforce, firing those he deems disloyal and filling positions with his loyalists. It certainly would violate the very purpose of the Pendleton Act and the civil service system.
These, of course, are only some of the actions of dubious legality that Trump has promised, and there are sure to be many that have not yet been mentioned. Two conclusions emerge from just these. First, taken together, these constitute a clear path to authoritarianism. It is not hyperbole to say that, in aggregate, these actions—giving the president virtually unlimited control over federal spending and over federal agencies, using the Alien Enemy Act and the Insurrection Act, employing the military to carry out his domestic policies—would radically change the United States. They would shred checks and balances. They would create a presidency unlike any ever imagined by the Constitution’s authors, and unlike any ever seen in this country.
Second, virtually all of the actions described in this article would violate clearly established law, including many that are blatantly unconstitutional. But the crucial question is whether the Supreme Court will enforce these laws and stop Donald Trump. The future of American democracy likely will turn on this.
