Dem
51
Ties
4
GOP
45
While we are on the subject of legislation Democrats may push if they win both chambers on Nov. 3, there is also this story. The Ban Flock Act might actually pass next year because the cameras are so unpopular that Republicans who vote against Bernie & AOC's bill know the Democrats will put that front and center in 2028. But Democrats are also thinking long term, namely how to reverse Trumpism if they get the trifecta in 2028. It won't be easy and depends a lot on how aggressive a future Democratic president is, but, as they say, you miss 100% of the shots you don't take.
The main thrust of the bills being prepared is reining in a future president. Will Republicans vote for it? It depends on who the Democratic president is and how he or she acts. If the president aggressively uses all the "new" power Trump has acquired, the Republicans might be interested. Since the Supreme Court now believes in the Unitary Executive theory, a Democratic president could fire every single Trump appointee in the government on Day 1. And since the Pendleton Act is apparently now passé, why not fire all the civil servants Trump put in place? Then tell all red states that unless they allow abortion up to the third trimester of pregnancy, the president will cut off all their federal funding. Then tell all universities, including those in red states, that they have 30 days to submit a D.E.I. plan and start executing it, lest they lose federal research funding. All the Trump tariffs? Gone with the wind on Day 2. Elon Musk violated the terms of his student visa when he first immigrated to the U.S., so on Day 3 the president strips him of his U.S. citizenship, seizes his U.S. passport, and deports him to his native South Africa. If these things all happen, it probably won't be long before there are plenty of Republican votes for legislation reining in the president, possibly specifying that certain acts are felonies and/or impeachable offenses.
Rep. Jamie Raskin (D-MD), who was a professor of constitutional law for 25 years before being elected to the House, and who will chair the House Judiciary Committee if Democrats capture that chamber, will take the lead on much of this starting in January. He said: "We will have to go department by department, subject by subject, and public purpose by public purpose to determine what we salvage and what we re-create." Some of the topics on the agenda could include these:
And many more, of course, not currently on the list. For example, simply eliminating the president's power to fill vacancies with acting officials. When a top executive branch vacancy occurred, the highest-ranking Senate-confirmed official in that department would automatically move up to temporarily fill the vacancy until the president nominated and the Senate confirmed a permanent replacement. Rules about what can and cannot be in an XO could be made explicit.
A real biggie would be campaign finance reform, eliminating (super) PACs altogether and putting a hard limit on the total donations any one person could make to all candidates and committees combined in a single year. To avoid the Supreme Court striking this down, Congress could first strip the Court of appellate jurisdiction in cases relating to campaign finances, as authorized in Art. III, Sec. 2, Clause 2 of the Constitution. As a bonus, Congress could also make it a federal felony for a justice to vote on a case in any area Congress has explicitly banned it from taking. Oh, and the Constitution DOES NOT grant justices tenure for life. It grants them tenure DURING GOOD BEHAVIOUR and Congress could pass a law saying being convicted of a federal felony is BAD BEHAVIOUR.
Congress could also reclaim power the Constitution grants it. For example, the Senate has the power to "advise and consent" on nominations. It has been doing lots of consenting recently, but little advising. The next time Trump submits a judicial nomination to the Senate, the Senate could vote it down immediately and then give him a list of five names to choose from, along with the message that any nominee not on the list will be voted down immediately without further ado. This would hugely increase the power of the Senate vis-à-vis the president and be fully constitutional.
To put the fear of God in future presidents, laws could make all kinds of actions that Trump took (like bypassing Congress to levy tariffs or wage war) federal felonies (thus eliminating the immunity defense) and making the statute of limitations 10 years, insuring that even a two-term president would have to worry about a future AG from the other party indicting him.
Of course Trump will veto everything if it passes next year, but 2027-28 is just a dry run for 2029 if Democrats get the trifecta. The idea will be to show the voters what Democrats will do if they get the power to do so in 2029. (V)