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By Thomas G. Moukawsher
Retired Judge and Author
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Republicans’ failure to stand up to President Donald Trump has brought the country close to a totalitarian state, allowing him to do largely as he pleased. Having captured control of Congress, Democrats should now resist the temptation to exact revenge and instead focus on restoring the checks and balances of American democracy and proving that they can govern responsibly.
President Donald Trump will retain the power to veto Democrats’ attempts to restore the balance between the executive and legislative branches. It is possible that enough Republicans, enough of the time, may have learned from Trump’s excesses and will join with Democrats to deliver the two-thirds of congressional votes needed to override presidential vetoes and restore the rule of law. But Democrats can’t count on it, and there are enough safe Republican seats to likely frustrate routine bipartisanship of this extraordinary kind.
So, let’s assume that Trump can cow or keep at least 34 senators in his corner as Democrats ascend to power in Washington. It could mean one ugly standoff after another. Democrats will try to retrieve the taxing and spending power that Trump undermined by refusing to spend money appropriated by Congress and by using tariffs to raise revenue off the backs of consumers. Trump will veto these measures along with anti-corruption legislation aimed at curbing his enthusiasm for bribery, extortion, and selling American foreign policy to the highest bidder. There will be standoffs about the budget. Trump may cave in at key moments, but whatever he does it will be, as usual, about him and his whims.
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In the face of them, there is a more stable course for Congress: the courts. A major reason for Trump escaping from much of his unconstitutional behavior about taxing and spending is that the Republican-led Congress has let him get away with it. Some of Trump’s individual victims have sued him and won back the money Congress appropriated for them but others have suffered from the tangled rulings the courts deployed about who can sue, when you can sue, where you can sue, and in what court you can sue. Some Democrats have tried to take him to court, but the courts take a very narrow view of individual members of Congress attempting to sue seeking to vindicate the powers of the institution as a whole.
But now Democrats control the institution as a whole, and that presents a very different picture in court. Congress can vote to file a lawsuit against the president, and he can’t stop them from suing. Multiple lawsuits could sort out the current imbalance among the branches. Up to now, the country has been leaning toward totalitarianism because nobody with the power to do something about it has stood up to Trump. Cases brought by Congress, free of the veto dilemma, could result in declarations that Trump’s cancelation of congressionally mandated spending on things like medical research and preventing the spread of disease across the world was illegal and must now be reversed. It could equally establish that the taxing power resides with Congress and that Trump’s abuse of the tariff power invades its domain.
The lawsuits wouldn’t be about revenge. Not if they are aimed at the right issues. What we need is our democracy back—a live-and-kicking Congress that respects its role in writing the laws and confines the president in accordance with the Constitution to carrying out those laws. That’s not revenge, that’s about restoring the America we knew and loved. If Democrats can show they know how to deliver on the country’s fundamental promises again—that they aren’t merely one set of craven creeps taking the place of another—they may not only get to exercise power for now, but they may be able to hold onto it for the foreseeable future.
Thomas G. Moukawsher is a former Connecticut complex litigation judge. He is the author of the book The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It and a forthcoming book entitled How to Sue the Government.
The views expressed in this article are the writer’s own.
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