Planning a Post-Trump Legal Reconstruction

The Fight Back Blueprint, Part 3

In the first two parts of The Fight Back Blueprint, I outlined strategies that Democrats should pursue to slow and stall Donald Trump’s agenda in Congress and ensure accountability for misconduct and lawbreaking. It is important, though, that we also think about the long term and strengthen laws that Trump has used to wreak such destruction and chaos. This paper, the third part of my blueprint, lays out plans to “Trump-proof” key federal statutes, so that no president in the future can weaponize them in the same way that Trump has. We must fight not only Trump but Trumpism.

It is fair to say that lawmakers in the modern era could not have imagined a president like Trump, or, at least, not with anywhere near sufficient clarity or concern to craft laws to effectively contain an Executive Branch that not only ignores longstanding legal and political norms and statutory interpretations, but relishes breaking through them with staggering frequency and speed. Richard Nixon had nothing on Donald Trump, and so it is no surprise that even Nixon-era reforms — such as the War Powers Act (1973) and the Impoundment Control Act (1974) — have proven woefully insufficient in this moment.

The idea of exploiting weaknesses in the law was very much part of the plan for Trump’s second term, put out in the open ahead of the 2024 election by Russ Vought — now running the Office of Management and Budget — who said that he was creating a “shadow” legal cabinet and preparing legal arguments to steamroll those who had previously gotten in the way of his reactionary program. Among the goals of Vought’s shadow cabinet was to find a way to decimate federal agencies and punish the professionals running them: “We want to put them in trauma,” Vought said. (He specifically cited the potential for the Impoundment Control Act to serve as an instrument for this plan.)

From shutting down government agencies to firing thousands of federal workers, withholding SNAP benefits from Americans, and more, Trump’s administration has demonstrated a brazen disregard for longstanding and relied-upon rules, norms, and programs, triggering court battles across the country to determine the legality of these actions. This will be, undoubtedly, the most litigated presidential term in history. In just the first 14 months since he retook office, Trump’s administration has been challenged in court more than 700 times.

As cases against the Trump administration have moved through the judicial system, a highly politicized Department of Justice has been armed with arguments that stretch the interpretations of laws to their most cynical boundaries. While Trump’s team is losing many of these battles, in other cases they have managed to provide partisan judges with sufficiently colorable arguments to rule in their favor. Of the nearly 240 cases that have been adjudicated by district courts, and those that made their way to circuit courts, Trump has prevailed more than 40% of the time. And of the cases that have made their way up to the Supreme Court, the Trump administration has an 80% win rate.

These statistics reveal the administration’s overall strategy: find even the most improbable loopholes in our laws to exploit, and relentlessly appeal unfavorable rulings until they reach the Supreme Court, where Republican-appointed justices are more likely than not to rule in Trump’s favor.

Democrats must reform the Supreme Court and take action to permanently depoliticize the Department of Justice; I would push to pass Sen. Ron Wyden’s Judicial Modernization and Transparency Act and Rep. Dan Goldman’s Prohibiting Political Prosecutions Act for starters. But we also need to prepare for a total legal reconstruction to address the gaps in law that have made this all possible. This paper focuses on some of the most significant statutes whose weaknesses have been brought to light by Trump administration actions. The overall imperative for Democrats is to prioritize this work when it comes to planning for and governing in the majority.

I. Restoring Congressional Appropriations Authority

President Trump has made a habit of engaging in what some scholars have called “appropriations presidentialism.” Essentially, he (wrongfully) claims that presidential authority gives him the right to unilaterally impound or withhold funds from distribution that have been duly appropriated by Congress.

In reality, the “power of the purse” — the power to appropriate money — sits solely in the hands of Congress, enshrined by Article 1 of the Constitution. In normal times, this takes the form of congressional negotiations over spending levels for agencies and programs across the federal government. When agreement is reached, the executive branch is responsible for obligating those funds — making sure that they are properly distributed. The executive branch does not, however, get to decide if the funds get distributed.

Trump is not the first president to mess with this process. Richard Nixon’s unilateral withholding of funds from programs that he didn’t like prompted Congress to enact the Impoundment Control Act of 1974 (ICA). The ICA was intended to solidify Congress’s control over any efforts by the executive to defer or rescind funds. Under the ICA, if the president wishes to rescind funds that have been appropriated by Congress, the president must send a special message to Congress. Once the message is sent, the president can freeze the funds for 45 days, during which time Congress may vote to formally rescind those funds. If Congress does not act within those 45 days, the funds must be obligated, according to the law. This process played out in July 2025, when President Trump sent a special message to Congress seeking to rescind $9 billion in funding for foreign aid and public broadcasting. Congress then enacted legislation approving the rescission. Awful, but lawful.

Shortly thereafter, however, the Trump administration exploited a weakness in the ICA with the goal of subverting the will of Congress on appropriated funding — exactly what the law was intended to prevent. On August 28, 2025, the administration sent a special message to Congress proposing to rescind $4 billion in foreign aid. The appropriation behind this funding was set to expire on September 30, 2025, the end of the federal government’s fiscal year. And so, the Trump administration asserted, even if Congress did not approve the rescission, the funds would, in effect, evaporate before the 45-day clock ran out.

This idea has been termed a “pocket rescission,” borrowing from the idea of a “pocket veto.” It is nearly unprecedented; the Congressional Research Service was able to identify three instances from the 1970s — and nothing since — where appropriations expired pending presidential rescission requests; all three involved tens of millions of dollars, rather than the $4 billion here; and in none of these cases did the President set out to run the clock. It almost certainly was not the intention of lawmakers, who specifically passed the law to shore up Congress’s authority in the appropriations process after power struggles with the Nixon administration. The Trump administration’s legal theory hinges on a technical issue in the law: the statute prohibits requests for funding deferrals from carrying over into the next fiscal year, but does not have similarly explicit language when it comes to rescissions.

The Trump administration’s pocket rescission was challenged in Washington, D.C.’s District Court, where Judge Amir Ali found in favor of plaintiffs who were set to receive funds and directed the government to distribute them. The Trump administration then appealed that ruling to the Supreme Court, seeking an emergency stay of the lower court’s order. On September 26, 2025, just days before the end of the federal government’s fiscal year, the Supreme Court, through its opaque emergency docket, allowed the Trump administration to effectuate its pocket rescission. Here, the Court hung its hat on a different technicality, finding that language in the ICA precluded the prospective recipients of funds from suing to enforce an appropriation.

The Trump administration’s impoundment strategy, blessed by the Supreme Court, represents a dramatic seizure of power by the Executive Branch and the evisceration of a critical piece of Congress’s authority. Democrats in Congress should amend the ICA in two critical ways to restore this authority:

1. Make clear that prospective recipients of appropriated funds have standing to sue to enforce the ICA.

2. Direct that any funds frozen by an unapproved rescission request at the end of the fiscal year be released. This would prevent pocket rescissions by, in effect, setting all rescission requests to expire at the end of the fiscal year at which time, in the absence of Congressional approval, funds would be released.

II. Limiting Use of the Insurrection Act

Our Founding Fathers were deeply suspicious of the use of a standing army to interfere with civilian life, fearful that the military could be used to uphold tyranny and infringe on civil liberties. In the centuries that followed, Congress developed a number of laws to ensure that the President could not use the Federal military for domestic law enforcement purposes, including the Posse Comitatus Act of 1878. This law bars the military from intervening or participating in civilian law enforcement — like riot response, arrests, or crowd control — unless they are expressly authorized to do so by federal law.

In late 2025, President Trump made a serious effort to break through these limitations. Over the course of several months, Trump deployed the National Guard to cities including Los Angeles, Washington, D.C., Memphis, and Portland, arguing their presence was necessary to “get crime out of our cities” and to fight “a war from within.” The deployments, which put thousands of federal law enforcement on American streets, were strongly opposed by local residents and cost U.S. taxpayers nearly $500 million. Trump relied on Title 10 of the U.S. Code to justify his actions. His administration’s legal argument failed at the Supreme Court in December of 2025. Just a few days later, Trump announced he was withdrawing federal troops from all cities.

There is reason to believe, however, that Trump is not done testing the limits of the law. In particular, he threatened — in response to anti-ICE protests in Minneapolis — to use the Insurrection Act to provide for the deployment of the National Guard and overcome the limitations of the Posse Comitatus Act. The Insurrection Act is broadly and vaguely written to give the President the power to decide “as he considers necessary” to use military force against “obstructions,” “combinations,” or “assemblages” that make laws “impracticable to enforce.” The power that the statute accords to the President was affirmed by the Supreme Court in 1827, which ruled in Martin v. Mott that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”

The Insurrection Act has been invoked roughly thirty times over the course of history, most recently in 1992, in California. Importantly, all of its invocations have been either at the request of governors or to respond to the obstruction of civil rights by state officials themselves. Not since 1965 has the Insurrection Act been used in the absence of a request by a governor, and the specific nature of Trump’s contemplated deployment would be completely unprecedented.

What Trump’s recklessness has revealed is the danger inherent in the vagueness of the Insurrection Act, and the need for Congress to reform the law so that it cannot be used by any Executive to persecute the citizenry. There are a number of legislative proposals aimed at achieving this goal, including the Insurrection Act of 2025, introduced by Rep. Chris Deluzio (PA-17) and Sen. Richard Blumenthal (CT).

Whatever specific form the legislation takes, Congress should make a number of key changes to the Insurrection Act:

1. Limit the basis on which the Insurrection Act may be invoked to circumstances where Americans’ constitutional rights or safety is in jeopardy.

2. Establish that the Insurrection Act does not provide for the suspension of habeas corpus or the imposition of martial law.

3. Require the President to provide a written justification to Congress for any invocation of the Insurrection Act, and require Congressional approval for extended deployments.

III. Ending Discretionary Deportations

As part of his mass deportation program, Trump has used two statutes to completely ignore due process: the Alien Enemies Act, and provisions of the Immigration and Nationality Act of 1952, also known as the McCarran-Walter Act.

The Alien Enemies Act allows the President to apprehend, restrain, and remove the natives of an “enemy country” if there has been a declared war or an invasion from that country. In other words, as the Brennan Center has noted, it is “an authority that permits summarily detaining and deporting civilians merely on the basis of their ancestry.” Prior to President Trump’s invocation in March of last year, the law had only been used three times in American history: during the War of 1812, World War I, and World War II. In all three of these instances, the United States had formally declared war.

Moreover, during World War II, the law was part of some of the most shameful actions by the U.S. government against civilians in our history. It was used by the federal government to detain tens of thousands of Japanese, German, and Italian natives, sending many to now-infamous internment camps, based on what Congress has since acknowledged was “racial prejudice” and “wartime hysteria,” “without adequate security reasons and without any acts of espionage or sabotage documented.”

Last year, Trump attempted to use the Alien Enemies Act to round up, detain, and deport Venezuelan nationals. Trump has claimed that the Tren de Aragua (TdA) gang’s presence in the United States is tantamount to a coordinated invasion, therefore satisfying the Alien Enemies Act’s threshold for use. The Trump administration deported, without proper due process, 252 Venezuelans they claimed were members of TdA to the notorious CECOT prison in El Salvador. While the President’s attempts to use this law to carry out unlawful deportations have largely been blocked in court (with the Supreme Court agreeing that the administration cannot invoke the Alien Enemies Act to deport Venezuelans without due process), the statute stands as a significant potential threat to liberty.

Similarly, provisions incorporated in 1990 into the McCarran-Walter Act give the Executive Branch broad discretionary authority to deport non-citizens, which Trump has used. The statutory language is jarringly open-ended in the power it provides to the Secretary of state:

“An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”

There is, of course, an entire statutory framework for the removal of non-citizens who are convicted of a broad array of crimes. There is a far lower bar for the removal of non-citizens involved in any way with terrorist activity. But this section language from McCarran-Walter sits alongside those laws to provide a fast-pass for the government, at its whim, to send law-abiding non-citizen residents out of the country.

Congress should:

1. Repeal the Alien Enemies Act in its entirety.

2. Repeal the “adverse foreign policy consequences” provision of the McCarran-Walter Act.

IV. Protecting the Right to Vote

One question I am asked most frequently is whether we will have free and fair elections this November. I hope that we do, and still think that we (mostly) will. But Trump has done and said enough to attack the bedrock of our democracy — the ability of our citizenry to choose its government and, in doing so, hold our elected leaders to account — that it is far from a sure thing. At the first available opportunity, Congress must shore up voting rights and protect our electoral processes.

Since the start of his second presidency, Trump has issued two Executive Orders aimed at limiting access to the ballot—one in March 2025, and one this past March—which aim to restrict voter registration and the ability of voters to cast their ballots by mail.

Despite the fact that there are virtually no noncitizens voting in our election, Trump’s first executive order attempted to leverage federal funds to impose strict “show-your-papers” requirements, which would put the burden on voters to prove their citizenship despite more than 21 million American citizens lacking any citizenship documents. Trump claimed broad “Presidential authority” to circumvent the Constitution’s States and Elections Clause, which states that the President does not have the authority to regulate elections because:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

Trump also tried to justify his antidemocratic actions by pointing to the National Voter Registration Act (NVRA) of 1993, and the Help America Vote Act (HAVA) of 2002. Trump claimed that the NVRA, which was passed with the goal of increasing voter registration (including at the DMV), authorized his “show-your-papers” requirement. The District Court in D.C. was unpersuaded, finding that while the law does require citizenship information to be verified through sworn attestation, it explicitly prohibits “any requirement for… formal authentication.” Trump also attempted to use the Election Assistance Commission (EAC), a government agency created by HAVA in the wake of the controversial 2000 presidential election, to direct states to alter their federal registration forms to include citizenship information. The District Court found this to be illegal in the same decision, noting that the EAC was meant to be an “independent regulatory agency” whose powers could be modified only by Congress, not the President. Two other district courts — one in Massachusetts and one in Washington — have come to the same conclusion, resulting in a number of injunctions. Their rulings have been appealed by the Trump administration.

Trump, undeterred by the three district court decisions, is attempting to once again unilaterally alter voting laws through the Executive Order he issued on March 31, 2026. Rather than require voters to present citizenship documents in order to register, Trump wants to pre-screen voters and give ballots only to those deemed qualified. Specifically, the Order directs the Department of Homeland Security to compile a list of eligible voters drawn from data sources that are widely considered incomplete and unreliable — despite the absence of any clear legal authority to do so. Central to this effort is the SAVE database, which the Executive is pressuring states to adopt as a voter verification tool. The SAVE database was created under the Immigration Reform and Control Act of 1986 to verify immigration status for federal benefit programs like Medicaid, food stamps, and employment eligibility. It was designed to determine whether someone qualifies for government social services, not to establish citizenship, and its records are often out of date or inaccurate.

The order also designates the United States Postal Service (USPS) as responsible for determining who is eligible to vote by mail, and instructs it to withhold ballot delivery to anyone who does not appear on the federal voter list. This is an unprecedented expansion of USPS’s role; the postal service has never before been involved in voter registration or eligibility, and has been straining for years to deliver on its core mandate. Finally, the order threatens criminal penalties against anyone who assists a person in voting if that person does not appear on the federal list.

Trump’s DOJ has argued that the federal government is responsible for overseeing citizenship—and that since voting is based on citizenship status, the federal government should, by extension, have the authority to limit voting to citizens verified by the SAVE database. The Constitution’s States and Elections Clause (Article I, Section 4, Clause 1), however, states plainly that the authority to grant voting rights rests with state legislatures and Congress. Additionally, the Postal Reorganization Act of 1970, which transformed the Post Office Department (which was subject to executive control) into the USPS, establishes that the President wields no executive authority over the independent agency.

Trump’s recent executive order, therefore, faces significant legal hurdles, but to firmly preclude future attempts to nationalize and control voter registration, Congress must:

1. Codify into law the District Court’s decision on the NVRA and HAVA, which establishes constitutional limits on presidential authority over elections. More specifically, Congress should legislate that the EAC is an independent agency whose mandate can only be determined by Congress, that the NVRA’s sworn attestation standard cannot be overridden by executive action, and that federal funding may not be conditioned on state voter laws.

2. Bar the federal government from demanding, collecting, or centralizing voter registration data. This includes explicitly prohibiting the use of the SAVE database, or any existing federal database, from being used for voter verification purposes.

3. Explicitly ban documentary proof-of-citizenship requirements.

In addition to what Trump is trying to achieve through his executive orders, his administration and political allies have talked openly about deploying federal law enforcement to poll sites for this year’s midterms. On February 3, 2026, Steve Bannon publicly said that the Trump administration would be sending ICE agents to “surround” voting locations during the midterm elections: “You’re damn right we’re gonna have ICE surround the polls come November.” Additionally, White House Press Secretary Karoline Leavitt said in February that she “can’t guarantee an ICE agent won’t be around a polling location in November,” calling it a “silly hypothetical question.”

There is already a federal law on the books — 18 U.S.C. § 592, passed in 1865 — that bans “troops or armed men” from being deployed where an election is being held. The law, however, does not address the question of whether, say, ICE agents without weapons would be barred from intimidating voters in the way that the 1865 law aimed to preclude. Likewise, the law does not address vote counting or certification processes, which have become epicenters of conflict over election results. Given that Trump has already deployed federal law enforcement to assist with bogus election fraud claims, these are not abstract concerns.

In response to threats of ICE presence at polling sites, Democrats need to:

1. Prohibit all federal law enforcement from operating within 500 feet of poll sites, explicitly naming DHS, ICE, and FBI agents.

2. Prohibit all federal law enforcement from taking part in vote counting or certification processes, and from entering ballot storage facilities and election offices without a judicial warrant based on specific evidence of a crime.

Finally, at the height of the Civil Rights movement, the Voting Rights Act (VRA) of 1965 was enacted to combat racial discrimination in voting. The bill, often described as “one of the most successful civil rights measures in history,” contained a number of crucial provisions: outlawing literacy tests, banning discriminatory gerrymandering, providing a right to sue for affected voters, and requiring jurisdictions with histories of discrimination to receive federal pre-clearance before they make changes to their election laws.

The law has been reauthorized five times since its passage. However, a conservative majority in the Supreme Court has repeatedly taken on the VRA in recent years, seeking to strip it down. Shelby County v. Holder (2013) struck down the formula used to determine which jurisdictions were subject to preclearance; meanwhile, Brnovich v. Democratic National Committee (2021) made it much more difficult for plaintiffs to prove racial bias in discriminatory voting laws. And most recently, on April 29th, the Court ruled in Louisiana v. Callais to make it functionally impossible for states to consider race when drawing congressional lines.

To preserve the vital objectives of the VRA, Congress needs to:

1. Pass the John R. Lewis Voting Rights Advancement Act, which would implement a new, modern formula to determine which jurisdictions have a history of racial discrimination. This would restore the federal pre-clearance standard that has been functionally dead since the Shelby decision in 2013.

2. Clarify the legal standard for plaintiffs to prove racial discrimination in how election districts are drawn, as well as in how they are affected by state laws.

3. Pass the Freedom to Vote Act, which would proactively expand the right to vote to millions of Americans by requiring states to offer early voting and mail voting, implementing automatic and same-day voter registration, combatting election misinformation and voter intimidation, and more.

V. Reestablishing Congressional War Powers

Over the past several months, Trump has dragged the United States into a number of armed conflicts without regard for the rule of law, risk to American servicemembers, the number of civilians killed abroad, the tremendous cost to American taxpayers, collateral impacts, or even whether there was a coherent plan to achieve the President’s own ostensible goals. He has illegally struck boats in the Caribbean, kidnapped the leader of a sovereign nation in Venezuela, and launched a war in Iran, all while flouting norms and the rule of law.

The Founders vested Congress with the sole authority to bring the nation into war in the Declare War Clause of the Constitution. They recognized that this was a power too great to vest in the hands of one individual. Congress, however, has formally issued a declaration of war only 11 times in American history (and not since World War II), opting instead to rely on Authorizations for Use of Military Force that allow the President to launch military hostilities within limited parameters.

In the 1960s and 1970s, successive Presidents abused the narrow authority granted to them by Congress through AUMFs. President Nixon engaged in extensive bombing campaigns in Cambodia that were kept a secret from both the American public and Congress. In response to Nixon’s gross abuse of power, Congress passed the War Powers Resolution (WPR) in 1973, which was intended to limit the unilateral authority of the President to bring our nation into war. The WPR, which was passed over Nixon’s veto, required a number of key processes in the event of American military engagements:

• Section 3 requires the President to consult Congress “in every possible instance” before U.S. Armed Forces are sent into hostilities;

• Section 4 requires the President to provide Congressional leaders with a written report within 48 hours of the introduction of armed forces; and

• Section 5 requires the President to terminate any use of forces within 60 days, unless Congress declares war or the period is extended, and empowers Congress to end a military action by passing a concurrent resolution.

The WPR has been flouted by every single President since its passage. Trump is not, unfortunately, the exception, but rather part of what is now a fifty-year tradition. Presidents from both parties have exploited gaps in the law to engage in what are, in any common-sense definition of the phrase, acts of war without congressional oversight. Members of Congress, perhaps happy to be relieved of responsibility for difficult questions of war and peace, have been complicit in the erosion of this critical separation of powers.

There are a number of arguments that Presidents have used to ignore the WPR or evade its intent. Multiple Presidents have argued that the law is, at its core, unconstitutional. After he sent U.S. troops into Venezuela to capture its president and dictator, Nicolás Maduro, Trump shared a post on Truth Social stating that “the War Powers Act is Unconstitutional, totally violating Article II of the Constitution.” Article II of the Constitution, which establishes the President as the Commander-in-Chief, has often been invoked to justify the President’s supremacy on military matters. The Supreme Court, however, has never weighed in on the constitutionality of the WPR.

Several administrations have taken military activities that walk and talk like war and argued that they are, in fact, not “war” at all. At a certain point, this argument makes the WPR in general a dead letter. Trump’s Secretary of State Marco Rubio characterized the military strike in Venezuela as “a law enforcement function to capture an indicted drug trafficker.” The Trump administration has argued the war in Iran was one of self-defense and therefore authorized by the WPR.

There are also a number of loopholes that have been manipulated to subvert the intention of the WPR. Since the Resolution specifies that “hostilities” must be mentioned in the report to Congress in order for the WPR’s 60-day clock on military action to begin running, Presidents have simply neglected to include the term—including in instances where tens of thousands of airstrikes were executed. With regard to the law’s requirement for pre-consultation, vague language in Section 3 has allowed presidents to argue that a simple phone call to Congressional leaders satisfies the law, even if it only occurs after the attacks have concluded. Finally, even if a War Powers Resolution were passed today, its effectiveness would be significantly limited by INS v. Chadha, a Supreme Court ruling from 1983. This decision ruled that any congressional action must be presented to the President in order to carry the full force of law, invalidating the WPR’s concurrent resolution mechanism. As such, if a WPR were to pass Congress today, it could be vetoed by the President and the war would continue—unless a two-thirds majority in both chambers of Congress voted to override, a nearly insurmountable bar.

In response to the long history of Presidents circumventing the War Powers Resolution, Congress should:

1. Amend the War Powers Resolution to clearly define the term “consultation,” as suggested in 1973 by the House Foreign Affairs Committee (HFAC) but never put into law. Additionally, the WPR should explicitly state that consultation should take place with the Gang of Eight, as has often been done in practice.

2. Amend the WPR to clearly define the term “hostilities” as suggested by the same 1973 HFAC report, which argued the term “encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict.” Additionally, the term should be updated for modern warfare and include not only the presence of U.S. ground troops but also drone strikes, cyber operations, and more.

3. Establish grounds for enforcement of violations of the WPR and standing for individual service members who were deployed in the context of a violation.