US: Trump to have more power than founding fathers intended

The US could be heading for two good years — at least if you are a Republican supporter. Not only will the party's presidential candidate Donald Trump be moving into the White House on January 20 — the right-lurching GOP (Grand Old Party) has also won control of the 100-seat Senate and retained control of the lower chamber, the US House of Representatives.

Since the 1858 midterm elections, the first to pit Democrats against Republicans in a two-way race, voters have delivered a so-called "unified government" a total of 48 times. Democrats have enjoyed the upper hand 23 times, Republicans 25. The parties have split control of the White House and at least one chamber of Congress a total of 38 times during that same period.

Usually, the president's party does not retain its grip on a Congressional majority for long. "Although a single party in charge in Washington is common at the beginning of a new president's term, there has only been one presidency since 1969 where control has lasted beyond the following midterm election," writes Katherine Schaeffer of the Pew Research Institute.

Midterm Congressional elections are held at the halfway point in the president's four-year term. Democrat Jimmy Carter was in fact the only president ever to secure and maintain control of Congress for the entirety of his four-year term (1977-1981). Still, he was voted out of office in 1980, making him a one-term president.

Presidents are keenly aware of the fact that their hold on a Congressional majority is potentially fleeting, says Nolan McCarty, a professor of politics and public affairs at Princeton University. "So I think it means that the president [Trump] will try to move quickly on certain legislative priorities," McCarty told DW.

Can Trump override the Senate?

The system of separation of powers in the US is as old as the Constitution itself. With it, the founding fathers set up a system of "checks and balances" to limit the power of any one of the three branches of government, dividing responsibilities between the Executive (the president), the Legislative (Congress) and the Judicial (the Supreme Court and the federal court system).

The Virginia Bill of Rights of 1776 — which inspired the US Bill of Rights in the Constitution a little over 10 years later — clearly states, "… the legislative and executive powers of the state should be separate and distinct from the judiciary…"

The upper house of the Legislative branch, the Senate, will play an especially important role when Trump's term begins in January, as the chamber is responsible for confirming or rejecting the president's Cabinet nominees. Republicans hold 53 seats (54 if one counts Vice-President JD Vance, who, as president of the Senate, will act as a tiebreaker in 50-50 votes) as opposed to the Democrats' 47, giving the GOP a slight majority.

But some of Donald Trump's Cabinet nominees are controversial — such as former Democrat Tulsi Gabbard and former Florida Representative Matt Gaetz, whose extremist behavior in Congress made him very unpopular even within his own party — meaning confirmation could be a challenge.

The incoming president has made clear that he would prefer to circumvent the whole confirmation process altogether. To do so, Trump could make so-called "recess appointments," installing Cabinet members while Congress is not in session, allowing him to sidestep confirmation hearings. Trump has already called on Republicans to approve his unusual plan in a statement on X.

"The discussion is whether the Senate will go on recess to allow the president to appoint his cabinet without being subject to Senate approval," says Nolan McCarty. "We've never really had a situation where recess appointments were used in such a large way. They're typically used for one or two appointments here and there, but to have an entire administration staffed by people with recess appointments would be concerning."

A decisive role for the Supreme Court

As stated above, despite Trump's desire to push through his Cabinet nominees using unusual methods, his party's control of the White House, Senate and the House of Representatives is not out of the ordinary. Still, this president-elect has another ace up his sleeve, the Supreme Court. Though the US Supreme Court is ostensibly non-partisan, the fact remains that presidents only select justices who reflect their own political leanings. In his first term as president, Trump was able to install three archconservative justices to the Court.  

Of the five male and four female justices of the nine-member court — all of whom serve lifelong appointments — Trump can now count on the clear support of six. Experts like McCarty expect Trump to push through many of his policy objectives with so-called "executive orders" allowing him to bypass Congress and the entire legislative process. "The normal check on that is the courts," says McCarty. And with the Supreme Court and numerous other federal courts under Republican control, "they'll make it a little bit easier to escape judicial scrutiny of those actions."

'More power than the framers of the Constitution could have ever imagined'

That Republican bent could also have an effect on Trump's plans for the mass deportation of illegal immigrants. The Supreme Court, for instance, could be called upon to weigh in on the Constitutionality of the domestic deployment of US troops to carry out deportations, or attempts to upend birthright citizenship [guaranteed by the 14th Amendment to the US Constitution], as George Washington University political science professor Sarah Binder told DW.

Binder is concerned that the current conservative-majority Supreme Court may choose to ignore legal precedent and instead regularly rule in favor of Republican policies. Binder points to the Court's recent rulings on abortion rights and presidential immunity as examples thereof.

"That's what worries me about the court," says the political scientist, "that it would backstop and empower President Trump to take far more power into the executive branch than I think framers of the Constitution ever imagined should be the case."

This article was originally written in German.