Seven years ago, former President Donald Trump raised his hand to take the presidential oath of office. He swore to “faithfully execute the office of president of the United States” and to “preserve, protect, and defend the Constitution.” Things went downhill for him—and for the country—from there. His presidency ended in an insurrection that sought to illegally keep him in power.
In legal filings before the Colorado Supreme Court, Trump is now arguing that he never actually took an oath to “support” the Constitution. He claims that Section Three of the Fourteenth Amendment, which disqualifies political officeholders who engaged in rebellion or insurrection, doesn’t actually apply to the presidency because the president is not an “officer of the United States.”
That provision applies to anyone who previously swore an oath to “support” the Constitution. But Trump and his legal team have claimed that the presidential oath instead says the swearer will “preserve, protect, and defend” the Constitution. Beyond the bad-faith legal hair splitting that this argument represents, Trump’s claim also underscores how much damage he will do to the American constitutional order if he returns to power in 2024.
Trump, as I’ve noted before, all but promises authoritarian rule. His language toward his political opponents has never been even-keeled: He opened his first campaign speech of the 2024 cycle by declaring to his supporters that “I am your retribution,” at a rally in Waco, Texas. But his latest rhetorical turns are disturbing even by those standards. In a Veterans Day speech in New Hampshire earlier this month, Trump embraced what could be seen as eliminationist language about his perceived political opponents.
“We pledge to you that we will root out the Communists, Marxists, fascists, and the radical left thugs that live like vermin within the confines of our country, that lie and steal and cheat on elections,” he told the crowd. “They’ll do anything, whether legally or illegally, to destroy America and to destroy the American dream.” Combined with his threats to use the Justice Department to round up leading Democrats, Trump is telegraphing his plans to govern as a dictator.
What could stop him if he wanted to do so? There are five practical checks on any presidency. The first is the executive branch itself. Cabinet members and other political appointees have some leeway to delay a president’s wishes, to partially enforce them, or even to ignore them altogether. In theory, this shouldn’t happen because the White House and the other departments are supposed to coordinate their actions and ensure everyone is on the same page. But with regularity during the chaotic maelstrom of the first Trump administration, it did.
Top officials routinely contradicted Trump’s public comments or possible policy shifts, choosing to interpret his frequent off-the-cuff remarks as anything but a direct order. Department and agency heads slow-walked controversial policies or made them low priorities. Special counsel Robert Mueller’s report on the Russia investigation documented multiple instances where Trump’s subordinates refused to carry out his instructions because they would have amounted to obstruction of justice.
For all of his rants against the “deep state” during his first term, Trump seemed to tolerate a certain amount of insubordination, perhaps accepting that his instructions should be taken seriously instead of literally. His second term could be vastly different, however. Trumpworld is devoting tremendous resources to reshaping the executive branch in Trump’s image. One prong of this strategy involves ideologically pre-screening political appointees for MAGA loyalty. This makes it unlikely that, for example, the FBI and the Justice Department would maintain their post-Watergate independence from the White House.
The other prong involves using a legally dubious loophole to strip thousands of nonpartisan civil servants of their statutory protections against dismissal. “We will pass critical reforms making every executive branch employee fireable by the president of the United States,” Trump remarked at one recent rally. “The deep state must and will be brought to heel.” His subordinates have also advanced an extreme version of the unitary executive theory that would, in their eyes, override civil service reforms like the Pendleton Act of 1883. The merit-based civil service would be discarded in favor of government by cronies and loyalists.
Another potential check on Trump’s second term would be Congress. Constitutionally speaking, this should be the most important one. But the modern nature of lawmaking means it will likely be the most impotent check. House and Senate investigations will be ultimately meaningless if nobody does anything about them. And since Republicans have already declined twice to convict Trump on impeachment charges, including after he sent a mob to ransack their workplace, it is doubtful that they would support a third attempt—especially if it risked facing his extralegal ire.
The third and most imposing check on any president is the courts. This too is a familiar obstacle for Trump. He spent his first term losing court battles across the country. Trump’s verbal attacks on judges have only escalated in recent years, even as he is under nominal gag orders in some of the prosecutions against him. Trump recently paid a $10,000 fine for breaking the order in one case and verbally attacked a judge’s staff through his lawyer.
The courts have been changed by the Trump years, however. He appointed a whopping one-quarter of active federal judges by the time he left office. A conservative litigant can guarantee a sympathetic judge by filing their lawsuit in a federal court in Texas, where a handful of hard-right judges have exclusive control over the docket. From there they go on to the Fifth Circuit Court of Appeals, where conservatives have a clear majority—Trump alone appointed almost half of its members. And then the last stop is the Supreme Court, where half of the conservative supermajority are also Trump appointees.
Of course, as I’ve noted before, the Supreme Court wasn’t as friendly to Trump as he thought during his first term. The justices have also refused to entertain his claims about the 2020 election or substantially hinder any of the postpresidency investigations into him so far. This makes it unlikely that the court would support truly egregious actions. The threat always remains, however, that he could simply defy the courts if they ruled against him.
No president has ever done so—Andrew Jackson’s famous quote about John Marshall is apocryphal, and he wasn’t a party in the case in question—but the threat remains. His rift with the Federalist Society and the conservative legal movement is now public. And since he frequently describes judges as corrupt and biased, his supporters may well be primed to accept the constitutional crisis that it would represent. After all, they stuck with him through January 6, so there is little reason to believe they would abandon him now.
Fourth, Americans could save everyone a lot of trouble by simply not electing Donald Trump to the presidency in 2024. They’ve already rejected him twice by overwhelmingly backing Hillary Clinton in 2016 and Joe Biden in 2020. (The Electoral College got in the way the first time.) And since Trump is still deeply unpopular with most Americans, they may very well do it again next year.
One important variable from 2020 is also missing: Trump is no longer the president, which means he doesn’t have nominal control over the military and federal law enforcement. As a result, the risk of another coup attempt in 2024 is substantially lower than it was three years ago.
At the same time, he may not need political violence this time. Biden’s sagging poll numbers—including among young voters and some key constituencies that helped get him to the White House last time—could make it possible for Trump to attain another Electoral College–only victory by picking off enough key states.
Finally, there is the Twenty-Second Amendment. Since its ratification in 1951, all presidents have been limited to two full terms in office. That prohibition is absolute: Neither Congress nor the electorate can suspend or lift it. It is also deeply ingrained in American culture. George Washington established it as a tradition by refusing to run again in 1796, and the voters denied third terms to Ulysses S. Grant and Theodore Roosevelt when they sought them before the amendment existed. Only Franklin D. Roosevelt has ever broken the Washington tradition and served more than two terms. Constitutionally speaking, no matter what else happens, Donald Trump would no longer be president at the stroke of noon on January 20, 2029.
Or would he? Since taking office in 2017, Trump has often “joked” about defying the limit. The most famous incident came in 2018, during a meeting with GOP donors where he discussed Chinese President Xi Jinping, who abandoned the country’s pattern of cycling out party leaders in favor of permanent rule. “He’s now president for life,” Trump reportedly said. “President for life. No, he’s great. And look, he was able to do that. I think it’s great. Maybe we’ll have to give that a shot someday.” He’s made similar jokes in public and in private since then.
Maybe Trump is just kidding. (After all, he would be 83 years old in 2029.) Maybe he’s not. This is a man who has promised to govern like a dictator instead of a democratically elected president if given the opportunity. He has already proven his willingness to use extrajudicial tactics and political violence to maintain his grip on power. And, as he has so forthrightly told the Colorado courts, he does not think he is actually bound to “support” the Constitution anyway. If a presidential candidate is telling you that he wants to end the republic, believe him.
