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Democrats Have Two Months to Trump-Proof the Presidency

With the party likely to cede the House—if not the Senate—to the GOP, meaningful steps to limit some of the executive branch’s power must be taken during the lame-duck session.

Mandel Ngan/Getty Images

A few days before Donald Trump left the presidency, MyPillow CEO Mike Lindell appeared in the Oval Office to propose a plan to keep the president in power. Lindell, who had by that time earned his way into the president’s confidence, was photographed just outside the White House, holding papers that he later presented to Trump. Those papers apparently advocated for invoking the Insurrection Act, urging “martial law if necessary.”

Lindell was only able to speak to Trump for a few minutes before he was diverted to White House lawyers—who dismissed his ideas as lunacy. But experts say the vague language of the Insurrection Act (which has not been updated since the turn of the twentieth century) makes it a potential weapon for an authoritarian president to target their domestic opponents and hold onto power.

With another Trump presidency looming as a real possibility and an anti-democracy doctrine gaining support on the intellectual right, Congress may be running out of time to fix the weaknesses in America’s republic. The Insurrection Act is one such weakness in need of repair, precisely because it accords too much democracy-breaching power to the executive branch. Despite the fact that Democrats presently occupy that branch, it may make sense for them to take the necessary steps to lessen its authority.

Toward the end of his first term, the Insurrection Act became one of Trump’s fascinations. He publicly considered invoking the law several times but never followed through—when asked what he might do if he won the election and riots broke out, Trump said, “We’ll put them down very quickly. We have the right to do that, we have the power to do that if we want. Look, it’s called insurrection. We just send in [the military], and we do it very easy. I mean, it’s very easy.”

The former president discovered “insurrection” during the summer of 2020, when he threatened to send American troops into the streets of cities that were then crowded with protesters outraged by the murder of George Floyd. Immediately after Trump’s threats, a group of Democratic senators led by Richard Blumenthal introduced the CIVIL Act, which would have required approval from Congress, the Department of Defense, and the Department of Justice to use the armed forces or a militia to put down an insurrection. The CIVIL Act also would have “terminated the [president’s] authority to use military force to suppress an insurrection after 14 days unless Congress enacts a joint resolution extending such authority.” But the bill never went anywhere.

Because of its broad language and the fact that it is “very easy” for a president to invoke it, the Insurrection Act became a favorite within Trump’s more fanatical circle of advisers—precisely the sort of loyalists he’s likely to install in positions of power if he wins the 2024 election. Even Bob Woodward broke the fourth wall to sound the alarm, writing in a recent opinion essay, “Trump has learned where the levers of power are, and full control means installing absolute loyalists in key Cabinet and White House posts.”

Outside the official Trump orbit, the Insurrection Act found more radical support. Oath Keepers founder and Yale Law graduate Stewart Rhodes, who has been charged with seditious conspiracy for his role in the January 6 insurrection, urged Trump to invoke the Insurrection Act and call Rhodes’s anti-government militia into action. As Oath Keepers were storming into the Capitol, others waited outside Washington D.C. with a trove of weapons. In court, Rhodes’s lawyers have argued that “when he believed that the President would issue an order invoking the Insurrection Act, [Rhodes] was prepared to follow it.”

Rhodes’s ideology relies on an extreme interpretation of the Insurrection Act, but the idea at the base of that ideology—that the executive branch has supreme power over the military—has become increasingly realistic since the September 11 attacks, after which Congress gave the executive branch blank-check authorization to use military force against foreign enemies. Both President Barack Obama and Trump cited those resolutions as justification for overseas military operations.

But concerns about the executive branch’s overabundance of power go well beyond the Insurrection Act and the military. As Elizabeth Goitein, a senior director at the Brennan Center, told The New Republic, “The executive branch has grown in scope and in power and concurrently with that, we have seen presidents make broader and broader claims to executive authority, including claims to inherent powers under the Constitution, increasingly reading this vague executive authority that the Constitution grants them to authorize all kinds of actions without congressional validation and sometimes even against the wishes of Congress.”

When President Trump failed to get funding for his border wall through Congress, he declared a national emergency, using the National Emergencies Act. In a press release accompanying that declaration, the White House noted that Trump has broad powers under the law: “The President invoked two of the more than 100 available statutory authorities available in national emergencies.” And when critics accused Trump of using the National Emergencies Act to subvert the will of Congress, then-acting White House chief of staff Mick Mulvaney told the press that the move creates “zero precedent” because “this is authority given to the president in law already.”

The Trump White House was alarmingly correct: There are incredible statutory authorities available to a president who invokes the National Emergencies Act. A president can declare an emergency to test chemical weapons on U.S. citizens without their permission. He can declare a national emergency to shut off the internet. Representative Peter DeFazio, who chairs the committee of jurisdiction for efforts to reform the National Emergencies Act, told The New Republic, “I don’t think that a lot of people have thought about how broad a national emergencies declaration could be: martial law … something related to elections—it boggles the mind to think what creative anti-democratic forces could do with the National Emergencies Act.”

At the beginning of the Biden presidency, there was some hope that the Democrats would work to reel in executive overreach, but whatever energy may have existed at one point to trim the executive branch’s sails has since dissipated. The Biden White House has shown little desire to lessen its own authority. In fact, Biden used the National Emergencies Act to fund student loan relief. Critics say that there were other ways for him to accomplish that goal; a Harvard Law study found that Biden could have directed the secretary of education to forgive student loans.

However, even with a disinterested White House, there is some optimism that the National Emergencies Act might be meaningfully reformed—while it may be a rather esoteric interest, it remains a bipartisan one. Goitien, who has testified before Congress on emergency reform, told The New Republic, “I’ve heard no one speak against reforming the National Emergencies Act. I’ve never experienced an issue that got such broad and deep bipartisan support.”

In the House, the far-right Representative Andy Biggs has introduced a bill that would terminate a national emergency “30 days after the declaration unless a joint resolution affirming such declaration is enacted into law, and for other purposes.” In the Senate, Republican Mike Lee joined Bernie Sanders to introduce a bill that would end “permanent emergencies” and “prevent the President from exploiting a crisis to increase executive authority.”

The reformation of the Insurrection Act and of the National Emergencies Act should be a priority: They are simply the best tools that an authoritarian president who wants to remain in power by corrupt means can use; the potential for mayhem and abuse is just too ripe and too readily available. Naturally, there are other gaping holes in American democracy that desperately need repair—the Electoral Count Act, the Hatch Act, and the Vacancies Act all could stand to be considerably strengthened. But with the prospect of a Republican-controlled house of Congress looming, the necessary large-scale reforms to protect America’s democracy are becoming more and more unlikely. That leaves an already overloaded lame-duck session to do the bulk of this work. But it may be the case that the best thing congressional Democrats can do with their waning power is diminish the power of the Democrat in the White House.