The guardrails of democracy reined him in last time. But they’re weakening.
Seven days after being sworn in as president, Donald Trump threw the nation into crisis.
The country had wondered whether the new president would follow through on the extreme and authoritarian proposals he’d put forward in his campaign. On January 27, 2017, by executive order, Trump imposed an extreme version of his “Muslim ban” — barring people from seven mostly-Muslim countries from entering the United States.
Even people already approved as lawful permanent residents — people with green cards, who had been legally living and working in the US, often for years — could all of a sudden be turned away, refused entry to their adopted home.
Chaos unfolded at airports, nationwide protests erupted, and to many, it felt like something new and genuinely frightening was taking place: a slide into an oppressive regime.
But then the crisis ebbed.
Just two days after the ban was imposed, widespread criticism pushed the administration to water down the policy — “clarifying” green card holders were exempt. Five days after that, a judge blocked the rest of the order from going into effect.
The guardrails protecting democracy had, it seemed, held.
This pattern recurred during Trump’s presidency. The president ordered or considered something outrageous. He faced pushback in response. And he usually, ultimately, ended up constrained. Sometimes Trump would eventually end up with a scaled-back version of what he wanted: a retooled travel ban, made less blatantly discriminatory, did eventually get court approval. Sometimes he’d manage to go quite far — as in his attempt to steal the 2020 election — before being thwarted. But often he’d fail entirely.
All this has led to a sort of complacency among many Americans about what a second Trump term would bring. There’s a mentality of: “It won’t be that bad — we got through it last time, right?”
We did get through it last time. But that wasn’t for lack of Trump’s trying. It was because of the guardrails: those features of the political system, both formal and informal, that so often prevented Trump from actually doing the undemocratic things he tried to do.
So to assess the peril a second Trump term poses for American democracy, we need to assess the condition of the guardrails. Worryingly, most of them have weakened since Trump first came to power; some have weakened very significantly. None appear to have gotten stronger.
We’re still a very long way from a system where the president can truly rule without any checks on his power. We can’t know right now exactly how often the guardrails would still hold Trump back, or how future crises would play out.
But it’s easy to see how a more determined and radicalized Trump, in a system with significantly weaker guardrails, could lead American democracy to even more dangerous places.
The guardrails: What they are
To understand what exactly the guardrails protecting American democracy are, think about how Trump’s corrupt ambitions were so often frustrated during his first term.
When he fired FBI Director James Comey, he ended up with special counsel Robert Mueller. When he wanted Mueller fired, it didn’t happen. When Trump urged prosecutors to charge his political enemies, they largely didn’t. He tried to punish CNN for negative coverage by blocking their parent company’s sale to AT&T; the sale went through. He tried to get Ukraine’s president to dig up dirt on the Biden family, but that effort blew up in his face and got him impeached.
He never went through with other things he mused about — like delaying the 2020 election due to the pandemic or using the military to crack down on racial justice unrest. And though his attempt to overturn Biden’s election win went further than almost anyone expected, it ultimately failed too.
In all these instances, there was pushback from part of the political system — often multiple parts — that either convinced or impelled Trump to back down.
We can think of the forces constraining Trump in two categories.
First, there are all the other government officials, among whom power in the system is dispersed. These include:
- Executive branch appointees, many of whom often refused to carry out Trump’s orders even though Trump himself appointed them
- The career civil service — the permanent government employees who can’t be fired
- Members of Congress, who pass or block laws, confirm nominees, and raise a stink when the administration does something they don’t like
- The courts, charged with enforcing the law, who often ruled against Trump
- State and local officials, such as the election administrators who certified Biden’s swing state wins in 2020
Second, there are the informal constraints. These include:
- The Republican Party, which, broadly defined, includes politicians, party officials, and interest groups Trump wants to keep on his side
- The press, which can unearth damaging news and hammer a president with critical coverage
- The public, who, when roused, can speak out, take to the streets, or vote politicians out of office
To be truly successful, a would-be authoritarian would need to coopt, weaken, or smash many of these rival power centers.
Some of Trump’s second-term agenda is designed to do just that.
The executive branch: Can the “deep state” protect democracy?
The president is, in theory, in charge of the executive branch. In practice, things are more complicated. The chief executive’s instructions have to be carried out by people — people who can refuse to go along.
About 2.2 million civil servants work across the federal government in career posts, in addition to 1.3 million active duty military personnel. They cannot be fired at the president’s say-so. In his book American Resistance, David Rothkopf argues that many such officials across different ages acted “in an informal alliance” during Trump’s first term to keep him “from doing irreparable damage to the United States.”
At the top of these federal agencies are the political appointees Trump actually gets to pick. They number about 4,000, of which around 1,200 require Senate confirmation. But these hand-picked appointees also often slow-walked, argued against, or refused to carry out President Trump’s orders.
This is an interesting phenomenon, and it’s worth thinking about why it happened. One reason may be that Trump often appointed “the wrong people” — that is, GOP establishment or nonpartisan figures rather than cronies and personal loyalists.
But another reason could be that top government posts themselves have a sort of pragmatizing effect to many who hold them. Once sworn in, appointees have to deal with the reality of their agencies’ capabilities, as well as with the practical and legal perils of putting Trump’s more extreme ideas into effect.
This dynamic was demonstrated most dramatically during the election crisis, when officials in the Justice Department, the White House Counsel’s Office, the Department of Homeland Security, the military, and other agencies declined to aid Trump’s schemes, as did Vice President Mike Pence.
Not everyone balked, though. Jeffrey Clark, a Justice Department official, made clear he would happily denounce swing state election results as fraudulent if Trump put him in charge of DOJ. Warned that riots would break out across the country if Trump illegally stayed in power, Clark answered, “That’s why there’s an Insurrection Act” — suggesting Trump could use the military to suppress protests of his power grab. (Trump nearly named Clark acting attorney general, but backed down after other DOJ officials made it clear they’d resign if he did.)
Clark shows there’s nothing guaranteed or automatic about the phenomenon where top officials constrain Trump’s worst impulses. Clark did end up facing serious consequences — he is being criminally prosecuted alongside Trump in Fani Willis’s Georgia case and may be disbarred too, but he was willing to take that risk. So if Trump could reliably identify and appoint many more Jeffrey Clarks to top posts, he’d be far better equipped to corrupt the executive branch.
And what if he could turn thousands of career civil servants into mini Jeffrey Clarks, too? Trump’s team has a plan for that. They say Trump will use his executive authority to reclassify tens of thousands of high-level career posts as political jobs, and then fire many of the people currently in those jobs, replacing them with prescreened MAGA loyalists.
Despite the big talk, there’s a question of whether Trump’s team really can pull this off. “A lot will depend on the efficiency and effectiveness of his team,” Rothkopf told Vox. “As we’ve seen in the past he doesn’t always attract the A-Team. They’re not always good at this kind of thing.”
If they can make it happen, though, the result could be a federal government that, at every level, is far more corrupt and willing to be weaponized against the president’s enemies.
Congress and the Republican Party: two weakened guardrails
Congress has a long history of frustrating and checking the ambitions of presidents, whose bold legislative agendas typically get dramatically downsized. In Trump’s first term, he adopted House Speaker Paul Ryan’s legislative agenda of repealing Obamacare and cutting taxes, shelving his own hopes for an infrastructure bill due to lack of GOP support. Then, centrist Republican senators thwarted the Obamacare repeal bill. And in the midterms, the GOP lost the House, sharply constraining Trump’s legislative ambitions for his next two years.
So far, so normal. But the modern Congress is a deeply partisan institution, and in recent years, the Republican Party has changed. At first, Trump was to a large extent coopted by the GOP, but since then, he has flipped the power dynamic. He has used his influence over the party’s base to make clear that if you refuse to defend his corrupt conduct, he’ll brand you an enemy — and your future in the party will be short.
This transformation has been particularly evident in the House of Representatives. Despite perennial drama among the chamber’s conservatives, House Republicans have become increasingly sycophantic supporters of Trump — often because, they believe, this is what their voters want. More than half of the House GOP voted to overturn Biden’s wins in swing states. Vocal Trump critics keep losing primaries or quitting the party, while the speakers keep going to Mar-a-Lago to bend the knee. A GOP House would be far less likely to constrain Trump next time around.
The most obvious way Congress can strike back against a corrupt president is by impeaching and removing him from office. But even after Trump’s attempt to steal the election and the January 6 attack on the Capitol, a mere 10 House Republicans voted to impeach him. Only two of them still remain in Congress. Partisanship has defanged the threat of impeachment.
Any resistance would likely be concentrated in the Senate. The current Democratic majority will very likely flip to the GOP if Trump wins, but still, senators have six-year terms that insulate most from imminent primary pressure. The chamber was frequently a thorn in Trump’s side in his first term, and it has never been a MAGA power base; only eight senators were hardcore MAGA enough to vote for throwing out Biden’s swing state wins in 2020.
Yet the Senate has gotten more Trumpist. Only three of ten GOP senators who voted to convict Trump at his second impeachment trial (Susan Collins, Lisa Murkowski, and Bill Cassidy) will still be in office in 2025. Mitch McConnell, who’d bitterly feuded with Trump, is stepping down from his leadership post later this year. And a favorable map gives the party an opportunity to make big Senate gains. The bigger a majority that Republicans win, the less Collins’s and Murkowski’s opinions will matter.
Nominations would be the first test to see if the Senate would still constrain Trump — swing senators could withhold their votes from nominees they believe to be extreme or unqualified. But there would likely be immense party pressure on senators to back Trump’s picks if he wins. And if the Senate blocks some, Trump may well try to slot them in anyway, by naming them “acting” appointees, and betting they’ll roll over and accept it.
The fate of the filibuster, which in practice requires 60 Senate votes for all bills except the limited category of “budget reconciliation,” will also matter hugely. A new Republican Senate majority could change its rules to kill the filibuster. If the filibuster stays, Trump’s legislative ambitions will be sharply constrained; he will need Democratic votes to pass almost anything. If it goes, the sky’s the limit. Currently, key Senate Republicans are saying they want to keep the filibuster. Would they stick to that or cave to Trump’s demands to get rid of it? In the end, the Senate’s effectiveness in constraining Trump will come down to the fortitude of a few key Republicans in the chamber.
The courts, the rule of law, and the Constitution
One of Trump’s most consistently expressed opinions is that he would like his political enemies — a broadly defined group that stretches from Joe Biden to his own former appointees John Kelly and Bill Barr — to be prosecuted. Having largely failed to make that happen in his first term, in his second, Trump wants to tear down the wall separating Justice Department prosecution decisions from the White House.
Yet that effort would face another important obstacle: the courts.
Judges throughout the federal court system can throw out baseless prosecutions. They can also block Trump’s executive branch actions or strike down new laws passed by Congress. With lifetime appointments, judges are theoretically immune from political pressure and free to uphold the rule of law and the Bill of Rights against authoritarian threats.
And judges frequently frustrated Trump during his first term — even, importantly, conservative judges, and judges Trump himself appointed. From the Supreme Court downwards, many of his judicial nominations were Federalist Society die-hards rather than MAGA die-hards, meaning they were often hard right but also willing to rule against Trump on various issues.
The Supreme Court also refused to help his effort to steal the 2020 election, to Trump’s great annoyance — he has reportedly said that following the Federalist Society’s advice on appointees was one of his greatest mistakes. (Though, if he tried to make his own loyalist picks, he might have had difficulty getting them confirmed.)
But there are some judges who do seem to be fully in the tank for the former president, like Aileen Cannon, who is overseeing Trump’s prosecution over classified documents in Florida, making rulings slanted in the former president’s favor and proceeding at a pace that rules out a trial before the election. The Supreme Court, too, could well do Trump a favor with a ruling that effectively delays his most important trial until after November — meaning, if Trump wins, it likely wouldn’t happen at all.
There’s also the prospect that a more emboldened Trump could choose to simply defy the courts. It is far from clear how much any Supreme Court would be able to constrain a president truly bent on defying them. In 2021, while running for office, now-Sen. J.D. Vance (R-OH) urged a confrontation here. Vance said that Trump should fire thousands of civil servants, and “when the courts stop you, stand before the country, and say ‘The chief justice has made his ruling. Now let him enforce it.’”
Still, the US Constitution and the courts upholding it present various other problems for a budding authoritarian. Strongmen rising to power in other democracies often change their countries’ constitutions. But the threshold for changing the US Constitution — two-thirds of both houses of Congress plus three-quarters of state legislatures — is so absurdly high that it’s functionally impossible to meet on any polarized topic.
Effectively, that means the two-term limit that prevents Trump from running again can’t be revoked, except in the event of a total collapse of constitutional government.
State and local governments: bulwarks of resistance?
Another major obstacle for would-be American authoritarians is the dispersed nature of governmental power under federalism. States and cities elect their own governments and run their own elections. So under a Trump second term, like in his first, blue states and cities would surely continue to resist his agenda, filing lawsuits, refusing to cooperate with federal law enforcement on certain topics, and so on.
But Trump’s team has been making plans about how to “enforce order” in blue America with the military.
Some on Trump’s team have long been drawn to the idea of crushing demonstrations or riots via an old statute known as the Insurrection Act. Last year, the Washington Post reported that Trump’s team had drafted a second-term plan to invoke the act on his first day in office so he could “deploy the military against civil demonstrations.” What would happen next would be anyone’s guess. But a president using the power of the military to quell domestic dissent may be a first step down a path leading to further repression.
Another area of confrontation could be elections. Trump has already set the precedent for how Republicans can deny any Democratic wins: just make baseless claims of rampant voter fraud in cities, evidence be damned. And one scary part of the 2020 election crisis is that it actually wouldn’t have been that difficult, if Republican officials in key states were sufficiently corrupt, to throw out Biden’s wins or at least stall the process of certifying the outcome.
And yet, despite Trump’s pressure, key Republican governors, legislators, and election officials refused to steal the election in 2020. Since then, Congress approved changes to the Electoral Count Act to make any such attempts more difficult to pull off. And in 2022, importantly, “election denier” Republicans running for roles with oversight over elections in key swing states lost. The guardrails around elections still look to be in decent shape, but in the end, the system will only work if enough people in key posts agree to let it.
The press and the public: Condition unclear
Finally, beyond the government itself, both the press and the public can challenge and effectively constrain a would-be strongman leader.
In Trump’s first term, if a government official got wind of a crazy or corrupt thing Trump wanted to do, the response was often to leak it to the press. Critical coverage and damning reporting about Trump was everywhere during his first term, and the mainstream media made it very clear that his claims of widespread voter fraud in 2020 were baseless.
Nowadays, Trump is still being covered negatively. But the mainstream media as a whole seems less influential and important, than it was during Trump’s term, a time of soaring subscriptions, ratings, and web traffic. The audience is increasingly fractured, with conservatives inhabiting their own media ecosystem and young people looking at TikTok. Business models are shot, with widespread layoffs and even collapses of publications.
Still, that pesky First Amendment means Trump doesn’t have many great options to shut up the press. During a second Trump administration, leaks would continue and critical reporting would be in ample supply.
The real question is: Will the public care?
Currently, Trump is doing better in the polls than at any point in his previous two presidential campaigns. Per polling, he is the favorite to win. So in one sense, the public is more in his corner than ever before.
But there are other signs that the intensity of Trump’s support is down. His small-dollar donations have declined. Traffic to conservative media outlets is plunging. There have been no sequels to the January 6 violence yet.
All this is likely stemming from a broader, bipartisan trend toward reduced engagement in politics. Political drama was omnipresent during the Trump years, but during Biden, the public has increasingly tuned out. (Hence those declining ratings and web traffic numbers.)
On the left, the main issue spurring activist energy isn’t defeating Trump — it’s protesting Israel’s war in Gaza, including Biden’s support of it. If Trump wins, would left-of-center society mobilize to check him like they did during the travel ban rollout, and at other points in his first term? Or are too many people now too burned out and disillusioned to care?
The silver lining is that the far right doesn’t seem to have mass support and enthusiasm throughout society as demonstrated by the rising fascist dictators of the past. But authoritarianism can rise due to apathy, too, if people don’t care enough to stop it.
Has Trump lost his sense of self-restraint?
In part, it’s reassuring that there are so many guardrails in the American political system.
And yet none of these are automatic or, necessarily, permanent. Yes, we have a system with laws and norms and institutions. But in the end, whether this system continues to function depends on the choices of the individual people in these institutional roles. “There are a lot of people right now who are thinking, ‘What legal steps do I have to constrain a wannabe autocrat?’ and are preparing for those battles,” said Rothkopf.
Democracy’s future would also depend on Trump’s own choices and capabilities.
One question is about Trump’s competence. Some believe that, even if Trump in his heart of hearts would like to impose an authoritarian agenda, he simply lacks the competence, focus, and discipline to make it happen. Others worry that his loyalists have already gotten far more experience in how to get their way in government, and that they’ve had four years to stew over why they failed so often last time and plan about how to do things differently next time. But even an effort as shambolic as Trump’s effort to steal the 2020 election can still be quite dangerous, as the violence of January 6 showed.
A second question is about Trump’s own willingness to restrain himself. Often, during his first term, it was the president himself who chose to back down from some provocative action. He had a sense of political self-preservation that often spurred him to step back from the brink — calculating this firing or that action would be too far.
This self-control badly weakened as he tried to overturn Biden’s win. Pundits and top Republicans initially assured us that there would be nothing to worry about. “It’s not like he’s plotting how to prevent Joe Biden from taking power,” one anonymous GOP official told the Washington Post that November. They thought they had Trump figured out, but the president stopped listening to the advisers counseling restraint, instead escalating the crisis more and more, leading to the chaos on January 6.
Still, even during that crisis, Trump could have gone further. For instance, he could have installed Jeffrey Clark at the top of the Justice Department, if he really wanted to. But that political self-preservation instinct meant he still feared the fallout from other top DOJ officials resigning in protest.
Trump, if he returns to power, will have no future reelection to make him worry about voters this time. And his rhetoric during his years out of office has grown far more extreme.
If Trump has lost any inclination toward restraint, and he really wants to drive headlong into the guardrails, he could do it.
And then we’ll really see how strong they still are.
