I think that there’s a lot of potential routes to alter tariffs, if they want to make court fights out of things. Tariff setting is an enumerated power of Congress, not the President, and I think that there are good odds that SCOTUS will generally defer to Congress in a number of scenarios if there is a disagreement.
And more-broadly, a lot of what Trump has done has been in a situation where there is real question over whether he can do something without Congressional approval, but Congress hasn’t actively objected to it. There are areas where even the Republican-controlled Congress hasn’t signed off on things, like his ballroom, arch, AUMF in Iran, etc, but they haven’t acted as a majority and taken issue with it.
You look at something like Goldwater v. Carter. There, Carter terminated a treaty when it was very questionable — though as yet unsettled in American constitutional case law — whether the President has the power to do so. Congress declined to take issue with it, and so it was essentially allowed to slide.
A majority of six Justices ruled that the case should be dismissed without hearing an oral argument. Justices Lewis Powell and William Rehnquist issued two separate concurring opinions on the case. Rehnquist claimed that the issue concerned how foreign affairs were conducted between Congress and the President, and was essentially political, not judicial; therefore, it was not eligible to be heard by the court. Powell, while agreeing that the case did not merit judicial review, believed that the issue itself, the powers of the President to break treaties without congressional approval, would have been arguable had Congress issued a formal opposition through a resolution to the termination of the treaty. (The Senate had drafted such a resolution, but had not voted upon it.[2]) This would have turned the case into a constitutional debate between the executive powers granted to the President and the legislative powers granted to Congress. As the case stood, however, it was simply a dispute among unsettled, competing political forces within the legislative and executive branches of government, and hence still political in nature due to the lack of majority or supermajority vote in the Senate speaking officially as a constitutional institution.
If Democrats want to establish case law establishing precedent limiting the Executive — and they may not, as in a non-Trump-in-the-White-House scenario, they might favor a strong Executive Branch — I’d guess that there are good arguments that in a number of cases, such as whether the President is using delegated tariff authority in the sense that Congress desires, a majority resolution from Congress of the sort that never happened in Goldwater v. Carter might change things.
Congress has the power to declare war; that’s also an enumerated Congressional power. We haven’t declared war as such since World War II, yet we have certainly engaged in things that would be considered war. But a lot of that is Congress being generally willing to let the President do something and just not object to it, or to attach themselves as little as possible to it. If Congress actually feels that the President is acting outside his authority on war without a declaration of war and doesn’t like it and wants it to stop and is actively willing to take issue with it, I suspect that SCOTUS is also going to tend to grant discretion to Congress on the matter.
Trump’s gotten a lot of mileage out of a Republican Congress simply being willing to let him do a number of things, or at least not actively oppose them. But to the extent that that window closes January 3, I think that he’ll have to deal with some changes.
There are things that a Democratic Congress probably can’t do. The President pretty much owns most foreign affairs, and if Trump wants to, he can keep calling Canada a 51st state or their prime minister a governor or threatening Greenland. That’s pretty clearly in his scope of authority. There’s nothing that a Democratic Congress can do about that, aside from applying indirect pressure using unrelated powers.
And if Trump wants to, he can veto laws unless Democrats can get some Republican legislators onboard. Generally, the US system is structured to favor maintaining the status quo.
But I think that there are a lot of things that a Democratic Congress can do or explore doing if it decides it wants to do so.
I think that a lot of what the Democratic Party is actually going to want to do is to stage-manage the next two years for a Democratic federal trifecta in 2028, which would let them do all sorts of things. But on policy over the next two years…I think that real things can happen there too.
And if Trump wants to, he can veto laws unless Democrats can get some Republican legislators onboard.
I think it is very likely for Democrats to get enough Republican votes to sustain a veto on specific issues, particularly on the war and on tariffs. Both bills would have to be crafted with Republican input, and be focused more on asserting Congress’s authority than on punishing past actions. But they should reinforce firm bounds that the President can’t sneak around.
But, conveniently enough, the threshold for overriding a veto is also more than sufficient for impeachment. So if Trump has constraints placed on him via a veto override, and he ignores them, the next logical step would be to impeach him over it. When drafting the bill, in exchange for the weaker language that Republicans would insist on, Democrats should insist that if Trump ignores even that, that Republicans should support ousting him. At that point, it’s not a matter of party anymore, it’s a matter of whether Congress has any power at all.
Democrats won’t get this courtesy from Republicans on anything else, so they should make sure to work together on this, as long as I am right and there are enough Republicans now willing to buck the President on this.
I think that there’s a lot of potential routes to alter tariffs, if they want to make court fights out of things. Tariff setting is an enumerated power of Congress, not the President, and I think that there are good odds that SCOTUS will generally defer to Congress in a number of scenarios if there is a disagreement.
And more-broadly, a lot of what Trump has done has been in a situation where there is real question over whether he can do something without Congressional approval, but Congress hasn’t actively objected to it. There are areas where even the Republican-controlled Congress hasn’t signed off on things, like his ballroom, arch, AUMF in Iran, etc, but they haven’t acted as a majority and taken issue with it.
You look at something like Goldwater v. Carter. There, Carter terminated a treaty when it was very questionable — though as yet unsettled in American constitutional case law — whether the President has the power to do so. Congress declined to take issue with it, and so it was essentially allowed to slide.
https://en.wikipedia.org/wiki/Goldwater_v._Carter
If Democrats want to establish case law establishing precedent limiting the Executive — and they may not, as in a non-Trump-in-the-White-House scenario, they might favor a strong Executive Branch — I’d guess that there are good arguments that in a number of cases, such as whether the President is using delegated tariff authority in the sense that Congress desires, a majority resolution from Congress of the sort that never happened in Goldwater v. Carter might change things.
Congress has the power to declare war; that’s also an enumerated Congressional power. We haven’t declared war as such since World War II, yet we have certainly engaged in things that would be considered war. But a lot of that is Congress being generally willing to let the President do something and just not object to it, or to attach themselves as little as possible to it. If Congress actually feels that the President is acting outside his authority on war without a declaration of war and doesn’t like it and wants it to stop and is actively willing to take issue with it, I suspect that SCOTUS is also going to tend to grant discretion to Congress on the matter.
Trump’s gotten a lot of mileage out of a Republican Congress simply being willing to let him do a number of things, or at least not actively oppose them. But to the extent that that window closes January 3, I think that he’ll have to deal with some changes.
There are things that a Democratic Congress probably can’t do. The President pretty much owns most foreign affairs, and if Trump wants to, he can keep calling Canada a 51st state or their prime minister a governor or threatening Greenland. That’s pretty clearly in his scope of authority. There’s nothing that a Democratic Congress can do about that, aside from applying indirect pressure using unrelated powers.
And if Trump wants to, he can veto laws unless Democrats can get some Republican legislators onboard. Generally, the US system is structured to favor maintaining the status quo.
But I think that there are a lot of things that a Democratic Congress can do or explore doing if it decides it wants to do so.
I think that a lot of what the Democratic Party is actually going to want to do is to stage-manage the next two years for a Democratic federal trifecta in 2028, which would let them do all sorts of things. But on policy over the next two years…I think that real things can happen there too.
I think it is very likely for Democrats to get enough Republican votes to sustain a veto on specific issues, particularly on the war and on tariffs. Both bills would have to be crafted with Republican input, and be focused more on asserting Congress’s authority than on punishing past actions. But they should reinforce firm bounds that the President can’t sneak around.
But, conveniently enough, the threshold for overriding a veto is also more than sufficient for impeachment. So if Trump has constraints placed on him via a veto override, and he ignores them, the next logical step would be to impeach him over it. When drafting the bill, in exchange for the weaker language that Republicans would insist on, Democrats should insist that if Trump ignores even that, that Republicans should support ousting him. At that point, it’s not a matter of party anymore, it’s a matter of whether Congress has any power at all.
Democrats won’t get this courtesy from Republicans on anything else, so they should make sure to work together on this, as long as I am right and there are enough Republicans now willing to buck the President on this.