Democrats won — how much can they do now to restrain Trump?

Although last week’s midterm results were a colossal win for Democrats across legislative and gubernatorial offices, it didn’t change the configuration of the U. S. Supreme Court — which has much to answer for when it comes to the chaos, corruption, and carnage of the second Trump administration. Since it invented criminal immunity for presidents in June of 2024, the court’s 6-3 majority has handed President Trump wins in eighty percent of his so-called “emergency” petitions for relief — the emergency usually being that the lower courts, applying the law and the Constitution, had impeded Trump from doing what he wanted when he wanted. As the country prepares for congressional investigations and possibly impeachments of Trump officials, the Trump family, and even Trump himself, the court’s Trump-friendly majority is poised again to put its thumb on the constitutional scale in two instances. First, the Supreme Court could help Trump if asked to weigh in on lawsuits involving congressional investigations. The landslide victories for Democrats mean that accountability is coming, but there’s only so much Congress can do. It can pass legislation, but the new House and Senate majorities are not veto-proof. Without substantial Republican support, Senate Democrats lack the 67 votes needed to remove Trump or his Cabinet officials through impeachment. Even if they could pass new legislation to rein in Trump’s worst excesses, for nearly two years now, he has shown little hesitation in violating statutory law while defying court orders with impunity. What Democrats in Congress can do is block his judicial and executive branch nominees; control committees; pass certain budget reconciliation legislation; conduct investigations, issue subpoenas and hold hearings. Congress doesn’t have its own law enforcement apparatus, so if the individuals aligned with the Trump administration defy subpoenas or even lie under oath, it is up to the Department of Justice to pursue criminal contempt referrals from Congress. Attorney General Todd Blanche will undoubtedly continue to side with lawlessness at Trump’s behest rather than do his actual job by upholding the rule of law. Congress does have the power to bring civil contempt cases in federal court, although that route is slow and laborious. In 2019, three House of Representatives committees issued congressional subpoenas to Trump’s accounting firm and financial institutions in connection with money laundering and related legislation. Trump sued in his individual capacity to block the subpoenas, arguing that they violated the separation of powers. In a 7-2 ruling, the Supreme Court held that Congress doesn’t have unlimited power to subpoena private records from a sitting president, noting that “without limits on its subpoena powers, Congress could … aggrandize itself at the president’s expense.” That case, Trump v. Mazars, came down before the court’s criminal immunity ruling in Trump v. U. S., in which the majority vastly expanded presidential power by declaring certain “core” powers effectively above the law, and “official” authority presumptively immune from criminal scrutiny even if employed to commit crimes. In Mazars, moreover, Trump didn’t even assert executive privilege. Taken together, if Team Trump snubs or even obstructs Congress’s oversight efforts and a case goes to the Supreme Court, there is a real chance that the majority will apply these recent precedents in Trump’s favor once again. Second, the court is essentially taking up the question of whether presidents can bypass the Constitution through private parties. Trump gave Elon Musk unprecedented authority over a slew of federal agencies through his creation of the Department of Government Efficiency by executive order (Congress has the constitutional authority to create agencies, not presidents). Musk wasn’t appointed under Article II of the Constitution or confirmed by the Senate, either. The same goes for Trump’s son-in-law, Jared Kushner, who has been trotting around the globe purportedly negotiating peace in the Middle East and Ukraine on behalf of the American public on an allegedly volunteer basis. At the same time, he has gotten exponentially richer. Regarding DOGE, litigants sued under the Freedom of Information Act to obtain basic information about its organizational structure and access to sensitive governmental systems, such as the Social Security Administration. The lower court ruled that DOGE was not exempt from FOIA and that certain records must be turned over. On an emergency petition, a 6-3 Supreme Court stayed that ruling last year, emphasizing that judges should exercise restraint when it comes to executive branch communications. The court has since taken up parts of that case this term. If the court agrees with Trump that discovery into DOGE’s structure, authority and operations is not permissible, it would undoubtedly invite future presidents to gift governmental power to private actors without oversight. If that were to happen, Congress would have to act urgently to confine the likes of Musk and Kushner within the rule of law. The good news for those concerned about the overbearing power of the Supreme Court is that the new Senate majority can block another Trump nominee, as then-Senate Majority Leader Mitch McConnell (R-Ky.) did to President Barack Obama’s nomination of Merrick Garland in 2016. If a Democrat wins the White House in 2028, replacing just two conservative justices could flip the right wing of the court from six justices to four, ushering in a new progressive era. The Constitution would be better off for it. Kimberly Wehle is currently a thematic group coordinator and fellow at the Netherlands Institute for Advanced Study in the Humanities and Social Sciences and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer — and Why.“ Copyright 2026 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.