What Trump can — and can’t — do as president

A cheat sheet for the next four years.

Good morning! It’s Thursday, November 21, 2024. Inauguration Day is 60 days away.

Over the last few weeks, a lot of you have been dropping into my inbox with variations of the same few questions: What parts of Trump’s agenda will he be able to implement as president? Where might he be blocked by Congress or the courts, and where does he have full authority? Will X actually get done? Is Y a possibility?

So I thought I’d put together a guide to walk you through what Trump will and won’t be able to do in his second term. This isn’t exhaustive, of course, but I’ve tried to cover a broad range of categories — and I’ve tried to remain as concise as possible, to make this an easy piece to refer back to, share with your friends, or use to sound smart at dinner parties.

Also below: The latest on Trump’s nominees. What to watch today in Washington. And another reader question, answered.

Photo by the National Archives

Mass deportations

President-elect Trump has repeatedly said that he will launch the “largest deportation effort in American history” on his first day in office. As a general rule, presidents have broad powers over immigration enforcement, so you should certainly expect immediate changes in this area. However, there will also be significant logistical challenges Trump will face.

According to Pew Research Center, as of 2022, there were 11 million unauthorized immigrants living in the U.S. Removing them is easier said than done; to do so, the Trump team will have to figure out:

• How to find them (many are not on the government’s radar)

• Where to detain them (the government does not have nearly enough beds)

• How to transport them (chartering airplanes is expensive!)

• Where to take them to (many countries will refuse to let the planes land)

Experts estimate that deporting one million people a year could cost $88 billion annually. Immigration agencies do not currently have anything approaching those kinds of resources, so the main issue will be finding the money to hire enough personnel, buy enough beds, and charter enough planes to carry out mass deportations.

Trump has also floated working with state and local law enforcement agencies (some will cooperate; some won’t) or enlisting military help. Taking the latter route would be sure to face legal challenges, as the Posse Comitatus Act of 1876 limits federal troops from being used to enforce domestic policy within the U.S. (Trump allies point to other laws such as the Insurrection Act of 1807, which allow the military to be deployed “in cases of insurrection or obstruction to the laws.”)

There’s also the matter of public pressure: in addition to the economic costs of mass deportations, thorny questions arise about separating families and detaining children, which can spark political backlash. There are also signs that deploying the military would spark criticism from Trump’s own party: libertarian-minded Sen. Rand Paul (R-KY) said yesterday that using the military for mass deportations would be a “huge mistake.”

Tariffs.

Like on immigration, Congress has forked over vast amounts of power on tariffs to the executive branch, including with the Trade Expansion Act of 1962, which allows the president to impose tariffs unilaterally by citing national security, and the Trade Act of 1974, which allows the same in response to unfair trade practices.

Trump has suggested he would impose a 60% tariff on goods from China and tariffs up to 20% on goods from everywhere else. There are pretty much two ways to look at whether Trump will actually follow through with these threats.

In one school of thought, Trump views tariffs as the primary source of government revenue, returning to the 1890s, when taxing foreign imports — not domestic incomes — was how the Treasury filled its coffers. This would imply that Trump will take the maximalist approach he has often mused about.

In another school of thought, Trump’s threatened tariffs are best understood as a negotiating tactic. “It’s a bargaining chip,” Howard Lutnick, Trump’s Commerce Secretary nominee, said during the campaign. In this way of looking at it, Trump wants other countries to think he will impose across-the-board tariffs, so they will lower their own tariffs on U.S. products, and then he will only impose more targeted tariffs on the countries that refuse to level the playing field.

It remains to be seen which approach Trump will take (you could make an argument for either based on his public comments). In any event, he likely has the power to take whichever route he prefers, although — like on mass deportations — he could face public backlash if he follows through with across-the-board tariffs and consumer prices raise as a result.

Pardons.

According to the Kalshi betting market, there is an 84% chance that Trump will pardon all January 6th rioters in his first 100 days.

Trump would be sure to face political blowback (including from his own party) if he were to do so, but it would certainly be within his authority. There are very few limits to a president’s pardon powers: they can pardon anyone charged with a federal crime (and, in the past, have even pardoned people not yet charged).

The question of whether a president can pardon themselves remains entirely untested.

Taxes.

Many of the changes to the tax code included in Trump’s signature Tax Cuts and Jobs Act are set to expire at the end of 2025, which gives Trump and the Republican Congress a prime opportunity to extend them.

Cutting taxes is one of the easiest things to do in Congress: while most pieces of legislation are subject to the 60-vote Senate filibuster, the reconciliation process allows bills that primarily address taxes or spending to coast by with just a simple majority. (This process was used by Republicans to approve the Trump tax cuts in the first place, and by Democrats to approve parts of Obamacare and the Biden-era Covid stimulus plan and Inflation Reduction Act.) The upshot here is that, as long as Trump can keep GOP members in line, cutting taxes won’t be difficult.

Since these tax cuts are likely to punch a hole in the deficit, the real question is what (if anything) Republicans will use to offset the costs. As discussed above, tariffs are one possibility (although many Republicans are skeptical). Per the Washington Post, Trump allies are also looking at making changes to the Medicaid and food stamps programs as a way to offset the cost of tax cuts.

NATO.

The president cannot unilaterally withdraw from NATO, thanks to a provision approved last year — and authored by Trump’s incoming secretary of state, Marco Rubio — that requires congressional approval.

However, even if the U.S. remains in the alliance, as commander-in-chief, it will be up to Trump whether or not to deploy troops if the heart of the NATO Treaty — Article V (“an armed attack against one [NATO ally] shall be considered an attack against them all”) — is invoked. Theoretically, this has been true of every president since 1949, however: a decades-old treaty can only do so much to constrain a future president’s behavior.

Obamacare.

Trump tried to repeal the Affordable Care Act in his first term and wasn’t able to summon enough GOP support. I doubt he’ll go down that road again, although, of course, he could try (and the reconciliation process would be available to avoid the filibuster).

Much more likely is that he will take similar administrative steps to weaken the ACA as he did in his first term, such as curtailing Medicaid expansion and declining to advertise Obamacare marketplaces (which would presumably have the effect of reducing enrollments). Biden-era enhanced subsides that have made it cheaper to buy insurance through the Obamacare exchanges are set to expire at the end of 2025; it will be up to the GOP-led Congress whether to extend them.

Abortion

I’m also highly skeptical that Trump will try to pass a national abortion ban, which would be an intense political headache. But there are smaller steps his administration can take, such as making it harder to access abortion pills via FDA regulations and putting back in place the “global gag rule” (a provision often put in place during Republican presidencies that prohibits NGOs that receive federal funding from providing abortion services).

Prosecutions.

Since Watergate, a norm has emerged of presidents declining to interfere in Justice Department prosecutions. But, legally, there is little stopping the president from ordering the DOJ to prosecute whomever he chooses: the prosecutors works for him, after all.

Of course, whether those people could be convicted and sentenced to prison is an entirely different question: that would be up to a jury of their peers and then, for sentencing, a judge.

Vaccines.

Robert F. Kennedy Jr., Trump’s pick to lead the Department of Health and Human Services, would not be able to lift vaccine mandates for children in school, just as he would not be able to remove fluoride from the water: those are decisions made by state and local governments.

However, as HHS Secretary, he would appoint the people that make recommendations on those questions (not that states would have to listen to them). Kennedy would be able to choose the members of the CDC’s powerful Advisory Committee on Immunization Practices (ACIP), which issues guidance on vaccines; he would also oversee the FDA, which decides whether to approve vaccines for use in the U.S.

Education.

Every Republican president since Ronald Reagan has pledged to eliminate the Department of Education; none have done so. Your starting expectation should be that Trump is just as unlikely to follow through on the promise, as it would involve huge logistical headaches in finding new homes for vast sums of government money.

Climate.

Trump withdrew from the Paris climate accords during his first term; he would likely do so again (although, interestingly, the CEO of Exxon Mobil — of all people — is urging him not to).

He has promised to supercharge U.S. fossil fuel production; as I’ve discussed before, the president only has so much power over whether companies choose to drill or not (market trends referencing clean energy will be difficult to reverse). Still, Trump can (and almost certainly will) make fossil fuel production easier, by rolling back regulations, making way for new pipelines, and approving new oil and gas leases on public lands.

A big question mark remains around the Inflation Reduction Act, the Biden administration’s signature climate law. The next Congress is likely to axe some of the law’s provisions — but don’t expect it to be repealed entirely. The package has led to investments in many Republican-led states, and lawmakers representing those communities are unlikely to sign off on ending them.

LGBT rights.

In his first term, Trump banned transgender service members from serving in the military, a step he would likely take again. Beyond that, Trump has said he will try to use the federal treasury to implement his vision in this area, floating steps like cutting federal dollars for schools that teach “gender indoctrination” and withholding Medicare and Medicaid funding from hospitals that provide gender transition surgeries to minors. Those steps would face certain legal challenges.

Protections for same-sex marriage are unlikely to be undone: while two Supreme Court justices (Clarence Thomas and Samuel Alito) have said they would overturn Obergefell v. Hodges, there is no evidence that there are five SCOTUS votes to do so. The Respect for Marriage Act (which requires states and the federal government to recognize same-sex marriages performed in other states) was passed in 2022 with bipartisan support; the votes are likely not there to repeal it.

---

More news to know

President-elect Trump nominated Iowa lawyer Matthew Whitaker to serve as the U.S. ambassador to NATO. Whitaker controversially served as Acting Attorney General for three months in Trump’s first term; he has not previously worked in foreign policy.

The bipartisan House Ethics Committee voted to complete its draft report into Attorney General nominee Matt Gaetz, but deadlocked along party lines on whether to release it. A Democratic lawmaker has said he will force a full House vote on a resolution that would trigger the report’s release.

A 2017 police report detailing graphic sexual assault allegations against Defense Secretary nominee Pete Hegseth has surfaced publicly. Hegseth, who later paid his accuser in a settlement, denies the allegations.

The International Criminal Court has issued arrest warrants for the leaders of Israel and Hamas, accusing both of crimes against humanity.

Linda McMahon, Trump’s nominee to serve as Education Secretary, falsely claimed to have a bachelor’s degree in education in 2009. McMahon’s degree was in French, although she also received a teaching certificate, which she said at the time that she thought was an education degree. She later corrected the error.

Sen. John Fetterman (D-PA) signaled he would be open to confirming Mehmet Oz — his 2022 rival — for a key health post. “If Dr. Oz is about protecting and preserving Medicare and Medicaid, I’m voting for the dude,” Fetterman wrote on X.

House Speaker Mike Johnson announced in a statement that “all single-sex facilities” on the House side of the Capitol are “reserved for individuals of that biological sex.” Rep.-elect Sarah McBride (D-DE), who will soon be sworn in as the first transgender member of Congress, called the policy an “effort to distract from the real issues” but said she would comply with it.

---

The day ahead

• President Joe Biden will sign the Congenital Heart Futures Reauthorization Act into law and host the Boston Celtics to celebrate their 2024 NBA championship.

• Vice President Kamala Harris is on vacation in Hawaii.

• The Senate will continue working through Biden’s final judicial nominations.

• The House will vote on the Stop Terror-Financing and Tax Penalties on American Hostages Act, which would empower the Treasury Secretary to revoke the tax-exempt status of non-profit organizations they deem to have provided “material support or resources” to terrorist groups. The measure would also stop the IRS from charging late penalties to U.S. nationals who failed to pay taxes because they were being held hostage abroad.

---

Ask Gabe

Nancy B. asks: What happens if Trump dies before his victory is certified or before being sworn in?

According to the 20th Amendment, if “the president-elect shall have died” before his inauguration on January 20, “the vice president-elect shall become president.” Seems simple enough, right? Well, not quite.

As the National Archives itself notes, “the Constitution is silent” on when exactly a winning candidate becomes the “president-elect.” Which seems like a less-than-ideal point of vagueness in an era of aging candidates and attempted assassinations.

There are three potential phases to consider:

• Phase 1: November 5-December 17. A candidate dies after the election but before the Electoral College meets.

• Phase 2: December 17-January 6. A candidate dies after the Electoral College meets but before their votes are certified by Congress.

• Phase 3: January 6-January 20. A candidate dies after the congressional certification but before the inauguration.

In Phase 1, the president-elect is popularly called the “president-elect,” but has the least legal claim on the title. A candidate has died once before during this period, in 1872, although it was the losing candidate (Ulysses S. Grant’s opponent, Horace Greeley). Then, Greeley’s electors ended up going to five different candidates (including Greeley himself). Nowadays, if this were to happen to Trump, it’s likely that the Republican Party would designate someone for GOP electors to vote for in his stead, and that person — who wouldn’t necessarily have to be the VP-elect — would eventually become the president.¹

Phase 3 is when the president-elect is most obviously the president-elect. It’s pretty clear that if Trump were to die in those two weeks, JD Vance would be sworn in as president on January 20. (Under the 25th Amendment, he could then nominate a vice president who would have to be confirmed by Congress.)

Phase 2 is where things get murky. If we consider the president-elect to be the president-elect once the Electoral College votes for them, then Trump’s death in this period would make Vance the president-to-be under the 20th Amendment. But if the president-elect doesn’t officially receive that title until January 6, theoretically Congress could have wiggle room to reject the winning ticket’s electoral votes and declare that nobody has received 270 electoral votes (which would allow the House to pick the president under the 12th Amendment).

Since the definition of “president-elect” is hazy, there is no categorical answer in this three-week period, although Congress would likely face public pressure to elevate Vance — and legal challenges if they opt against it.

1. Would this cause an issue in states where electors are legally bound to vote for the candidate who won their state’s popular vote? Maybe. Some states, such as California, have laws that explicitly command their electors to follow the direction of their political party in this scenario. But other states are silent on this point.

The Supreme Court, in its 2019 opinion upholding state laws that bind presidential electors, explicitly contemplated this possibility. “We do not dismiss how much turmoil such an event could cause,” Justice Elena Kagan acknowledged in a footnote, adding: “We suspect that in such a case, States without a specific provision would also release electors from their pledge. Still, we note that because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.”