How the next Democratic president must spend their first 24 hours in office.
This week’s Slate Plus bonus episode of Amicus is another entry in our occasional “Dear (Juris)Prudence” series, in which we invite listeners to ask their burning questions about the law and answer them as best we can. Write to amicus@slate.com to pose a question to Dahlia and Mark. This transcript has been edited and condensed for clarity.
Dear (Juris)Prudence,
What does recovery look like for us as a nation? Even if we elect a Democratic president, House, and Senate in 2028, how can we legislate or otherwise repair the damage to the law, norms, precedent, etc., when we still have a Supreme Court that ignores law, norms, precedent, and maybe even the 14th Amendment?
—Jacob Garcowski
Dahlia Lithwick: This is really an existential question as much as a legal one, but I know you’ve given it some thought.
Mark Joseph Stern: I think anyone who cares about salvaging American democracy needs to be asking those exact questions. And it’s pretty clear to me that the very first item on the agenda needs to be envisioning what the next Democratic president—let’s say, President AOC—should do in the first 24 hours of their time in office. That means embracing the maximalist vision of executive power that Trump has established to undo the damage that he is currently inflicting. Trump has amassed vast new powers for the president, and the next Democrat in the White House simply cannot surrender them. That would be unilateral disarmament, and a disservice to the country. What he or she needs to do instead is wield those powers aggressively for good, repair everything that’s broken, help the people Trump has hurt, and push forward with their own goals.
How does that cash out? First, let’s remember that the Supreme Court has now effectively granted the president authority to impound federal funds duly appropriated by Congress and to abolish federal agencies established and funded by Congress. I think that is terrible and anti-constitutional. But thanks to the Supreme Court, that is now the law. So let’s talk about what President AOC can do with those powers in 2029. On Day 1, she needs to impound ICE’s budget. She needs to refuse to spend the billions of dollars that Congress has appropriated to the agency and fire tens of thousands of immigration agents immediately, starting with those who committed acts of violence and discrimination—which, by that point, may be almost all of them. Close as many immigrant detention facilities as possible and free the detainees.
Then turn to Customs and Border Protection. Fire CBP chief Greg Bovino. Fire every single agent who participated in the horrific operations in Chicago, D.C., and L.A. Refuse to pay out a penny in benefits to any agent who broke the law. Release all the information about ICE and CBP’s immigration sweeps, including the names of every agent who participated. Start investigations and prosecutions of any law-breaking agent whom Trump doesn’t pardon. Repurpose the billions of dollars in savings as a reparations fund for every victim. Run the reparations program through a new agency established by executive order. Pay to return noncitizens who were wrongly deported back to the country. Transform ICE and CBP’s headquarters into the nerve center of a new Truth and Reconciliation Agency, and use this extra money to pay out damages to the victims of the mass deportation campaign. This would be 100 percent legal under the precedent established by Trump and the Supreme Court.
Remember: Trump has illegally fired tens of thousands of civil servants, closed agencies like USAID unilaterally, refused to pay out billions of dollars appropriated by Congress, halted our refugee program, shuttered the Education Department, paid reparations to Jan. 6 defendants and quite possibly himself. I think all of that should be illegal, but the Supreme Court has said that it is not. And you just cannot fight fire with a dripping faucet. So I say: Take these powers and use them to undo Trump’s legacy and really flood the zone. Blitz the country with these executive orders on Day 1 and dare anybody to stop you.
At the same time, the next Democratic president is going to be a “unitary executive” thanks to the Supreme Court. So purge every federal agency of Trump holdovers. Start with the Federal Trade Commission, the National Labor Relations Board, every other formerly independent agency. Oust every single Trump appointee at any agency in the executive branch. The Supreme Court is about to let the president do that, and it needs to see the consequences of its actions when the president isn’t named Donald Trump. Take his name off the Kennedy Center, the Institute of Peace, and every other institution that he has illegally branded. This needs to be a top-to-bottom reconstruction of the executive branch using the precedents that Trump himself established. That is the only way a true recovery can begin, and that is what needs to happen within 24 hours of the next Democrat reentering the White House.
I want to hurl myself in front of one objection you’re going to get, which is: But then the Supreme Court’s going to say all of that is illegal! My response is: Good, that’ll take three years to litigate. Run out the clock in the million ways that we have learned that the clock can be run out. And if everything is enjoined on Day 1 by every single Trump judge and then the Supreme Court, then we have another conversation. But I absolutely agree: Democrats should not petition, hands outstretched to the Supreme Court, for the maximalist version of presidential power when it’s not Donald Trump in office. They need to say: Cool, this is what the rule is now. Let’s go.
The other thing I want to say is that baked into Jacob’s question is this issue of: How do we reinstate norms? How do we get the other side to abide by the entire complicated web of unenforceable feelings about, say, a separation between the Justice Department and the White House? And how prosecutors conduct themselves in court? And on and on? If we can learn any lesson from President Joseph Biden’s regime, it’s that you cannot simply adhere to norms and hope the other side will look around and say: Hey, I forgot—norms are awesome! That is not the way to go back to living under soft, unenforceable norms of democracy. You cannot bring a shrimp fork to a knife fight. We have to disabuse ourselves of that idea.
Because norms survive in a system like ours when both sides feel that they have something to gain from them and something to lose when they go away. And right now, under Trump, the Republican Party believes that it can only gain from shattering norms, because Democrats are too timid and afraid of their own shadow. And the only way to disabuse the GOP of that notion is to show them what happens to their side when the norms are gone. We cannot restore the norms magically by having one side abide by them. That would only make things worse by reiterating to the Republican Party that it might as well shatter any norms it wants because Democrats will just go back to abiding by them, even when they constrict the political fortunes and the power of Democratic lawmakers. It can’t work that way. It can only work if Democrats give Republicans a taste of their own medicine and remind them why the norms were there in the first place.
I often say that norms are not an end in themselves. Norms are a means to a larger end, which is a functioning democratic state. And the notion that we can rebuild a world of norms unilaterally is the enduring failure of the Biden administration.
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