Building on his victory in the American presidential election, Donald Trump also captured the two chambers that make up Congress – what we call a “trifecta”a trifecta. It also already has a Supreme Court made up of a majority of judges appointed by Republican presidents.
The man from Mar-a-Lago, who has already shown a desire to exercise power in an even more authoritarian manner than during his first term, is he on the verge of reigning unchallenged over the venerable American republic ? Nothing is less certain. The structure of the American federal system benefits from certain singularities capable of containing, at least in part, the potential authoritarian tendencies of a president tempted by the potentate.
Federalism, the first defense?
If Trump fully dominates Washington DC, his influence may be limited when it comes to the daily lives of the 330 million souls who populate the country. Indeed, the federal structure of the United States, by creating two sovereign entities – the federal government and the federated states – restricts the influence of the former on the latter, which enjoy substantial autonomy. This influence is all the more limited because Congress can only act within its powers. mentioned in the Constitution (by a conjunction between the article which lists its powers and the Tenth Amendment).
In fact, fairly extensive interpretations of certain provisions have allowed Congress to act on a number of subjects. For example, it was under the “commerce clause” that he was able to ban weapons near schools, or even prohibit certain abortion procedures… Subjects which seem, at first glance, quite far from any commercial question.
The extensive interpretation of certain provisions of the Constitution therefore allows Congress to have a certain power over the federated states despite the limitation of its powers, a singularity which opens up to the Trump-Vance administration a field of possibilities on certain social subjects (abortion, contraception or even the question of transidentity).
However, the system of dual sovereignty at work in the United States reserves some singularities: principle enshrined in the judgment Printz v. United States of the Supreme Court, “anti-requisition” (anti-commandeering) establishes the possibility, for a federated state, of not accepting the requisition of its public agents by the federal government (in this case, it was a question of forcing the law enforcement agencies of the federated states to carry out certain relative tasks background checks of firearm buyers).
With the grant, the administration of 47e President could nevertheless be tempted to condition the granting of certain federal funds on the assistance of the States on certain subjects which are dear to him (such as immigration). Here again, if the spending clause (spending clause) of the Constitution allows this incentive approach, the latter must not be “coercive to the point of going beyond the point where pressure turns into coercion”says the Supreme Court in a decision rendered in 1987. It will therefore be particularly difficult to force the hand of States. A point which recalls the important role of justice in systems checks and balances (checks and balances) American.
Justice, reworked but not dominated
Donald Trump was able, during his first term, to appoint three justices to the Supreme Court. His second stint at the White House should, in all likelihood, allow him to make two new appointments, which will follow the departure of the dean and vice dean of the Court, Clarence Thomas and Samuel Alito. An unprecedented renewal since Dwight Eisenhower, who himself renewed five of the nine judges of the highest federal court.
These combinations of circumstances have not always resulted positively for the presidents who had the opportunity to reshuffle the body in this way. President Eisenhower is the perfect example: the Republican, after appointing Earl Warren and William Brennan (who became two “progressive” figures on the Court), bitterly concluded: “I made two mistakes and they both sit on the Supreme Court.”
The Supreme Court will not necessarily be hostile to Trump, but neither will it be very friendly toward his administration.
It would be an exaggeration to say that President Trump experienced such disappointment. He is nevertheless not entirely satisfied with the trio he appointed, as Justices Gorsuch, Kavanaugh and Barrett appear less “conservative” than expected – this role is more played by Justices Thomas and Alito. Certainly, the Court offered him some great personal victories, removing the risk of ineligibility and consecrating criminal immunity to the President of the United States, but his administration, notes the New York Times, “had the lowest success rate in the modern era” before the judges.
Supreme Court judges – and federal judges more generally – are not subservient to the person who appointed them. Although there may be an ideological alignment (and an influence of the judge’s political preferences on his judicial philosophy), the fact that the latter serve for life tends to guarantee, at least partially, a certain form of independence on their part. by protecting them from immediate political pressures. The Supreme Court will not necessarily be hostile to Donald Trump, but it will not be very friendly towards his administration either.
The Congress, minimal portion
A key body, Congress has numerous committees that allow it to control executive action through investigations and hearings. In the same way as the indictment procedure with a view to dismissal (impeachment) is doomed to failure in a context of strong political polarization which guarantees Donald Trump iron discipline from the Republican elected representatives of Congress, the supervisory power of Congress is promised at a lesser intensity.
However, it remains a tool often criticized on both sides of the political spectrum: the filibuster. Obstruction procedure specific to the Senate, it implies the need to obtain sixty votes to override. Probably aware that the filibuster comes under a principle of mutual deterrence, the leader of the Republican majority in the Senate Mitch McConnell said that there are no plans to put an end to it: as a result, the Grand Old Party will have no other choice than to find a few democratic votes to be able to vote on its texts.
Will Donald Trump have an authoritarian practice of power for this second term? Maybe. We can already expect a takeover of federal agencies and a certain instrumentalization of the Department of Justice. Likewise, the America First Policy Institute, an ultraconservative lobby, has already prepared almost 300 executive orders (“decrees”) which only await the signature of the President. Like eight years ago, the American republic will have to show its resilience and the effectiveness of its checks and balances.
Source: www.slate.fr
