With the midterms a week away, the forecasts have settled into a rough consensus. Prediction markets put Democrats above 90% to win the House, and even the more cautious statistical models have them near 80%. The Senate is closer: Decision Desk HQ has a Democratic majority at 57%, and Nate Silver has the chamber at “Likely D” with 75% probability.
Whether Democrats take the House is close to answered, setting aside for the moment the possibility of constitutional crisis scenarios where Trump and the Republicans try to overturn their defeat. Whether they take the Senate is still open. It turns on flipping a handful of races in Iowa, Maine, Ohio, Texas, and Alaska, while holding on to Michigan and Georgia.
It’s worth taking a look at what happens next. With a lawless administration still in power, and Trump still wielding the veto pen, it’s far from guaranteed a Democratic Congress will be able to significantly rein him in. But there are still better and worse scenarios for what Democrats can accomplish depending on how strongly the party of Trump is repudiated at the polls. Partly it depends on how much they’re willing to play hardball. But partly it depends on just how many seats they win.
A Republican House is unlikely enough to discount at this point. That leaves three plausible results: a Democratic House with a Republican Senate, a Democratic House with a one- or two-seat Democratic Senate majority, and a Democratic House with a Senate majority large enough to survive a defection or two.
Whichever it is, the posture should be the same. Congress controls the money, the confirmations, the subpoena power, and the impeachment power. The past two years have shown what happens when it declines to use them. The job of the opposition is to use all of them, at full strength, from the first day.
Trump will veto any freestanding bill that limits him, and no realistic Senate can override him. So the only statutory changes that become law in the next two years, whether to the budget or to anything else, will be the ones Democrats attach to bills the administration cannot do without. That means two bills in particular: the appropriations that keep the government open, and the separate annual defense authorization. Democrats should hold up each of those only if they are willing to let them lapse.
Aggressively Use Its Power of the Purse
A Democratic House facing a Republican Senate is the second most likely result, with roughly 1-in-4 odds. It gives Democrats the least to work with, which makes it the result where timidity costs the most—because confrontation is their only real chance of prevailing.
Money comes first. Nothing the administration does happens without appropriations, and the House can refuse to supply them. Every funding bill should come with binding conditions: no funds for domestic military deployments outside the statutory exceptions, no funds for detention facilities that bar congressional inspection, no transfers between accounts without committee sign-off, no payment to any contractor connected to the president’s family businesses, no funding for the idiotic and unpopular Iran war, and so on.
The administration will threaten a shutdown. Democrats should let it.
A party that will not risk a shutdown has no appropriations leverage at all. Shutdown blame tends to fall on whichever side the public already distrusts, and in last fall’s shutdown, polls put most of it on Trump and Republicans. There is little reason to expect the next one to go differently.
None of this assumes the administration will obey. It has already spent money Congress never authorized, most brazenly by paying TSA screeners out of border-security funds during this year’s shutdown. It has also refused to spend money Congress directed by law, and the Supreme Court has let it withhold billions in appropriated foreign aid.
A Democratic House should expect more of the same, including open defiance of whatever conditions it writes into the next funding bill. But that is no reason to stop writing them. An administration that has to break the law to get its money is in a different position, legally and politically, from one that has been handed it.
A Democratic House also gains a tool that has been unavailable for two years. The House as an institution has a stronger claim to sue over violations of the power of the purse than any outside plaintiff. In 2020, the D.C. Circuit held that the House had standing to challenge Trump’s diversion of military funds to the border wall, because spending money Congress never appropriated injures the chamber itself. That claim has gone unused the past two years because both chambers were held by people who would not bring it.
A Democratic House can use it for every unauthorized expenditure and every impounded dollar, starting on the first day. The tool is imperfect. The courts are slow, and the current Supreme Court is not friendly. But the opposition does not have it now and will have it in January.
Oversight is the second tool, and the 2019 House showed how not to use it. Subpoenas went out for Trump’s financial records, for the testimony of former aides, and for the documents behind the Ukraine pressure campaign to dish out dirt on Hunter Biden in exchange for aid that Congress had already authorized. The last item led to an impeachment. But the others were ignored, and litigated past the end of the Congress and the end of Trump’s first term in the White House. The fight over former White House counsel Don McGahn’s testimony over Trump’s interference with Robert Mueller’s Russia investigation ended in 2021, two years after the subpoena and well after it could have mattered.
This time the House should abandon civil litigation over subpoenas altogether. As the Georgetown law professor Josh Chafetz put it, going to a federal judge to make a congressional subpoena binding is a fool’s errand. It signals weakness, and it loses even when it wins, because the ruling arrives far too late.
The House should instead revive inherent contempt, which lets the chamber fine or detain a defiant witness on its own authority without having to ask the Justice Department to do it. It should back that with appropriations: no salary for any official in contempt, and no funding for the office that employs them. Inherent contempt has not been used since 1935, when the Supreme Court upheld the Senate’s arrest of a lobbyist who had destroyed subpoenaed documents. Long disuse has not made the power any less constitutional.
Then impeachment, where the House should not hesitate and should not be limited to the president; in fact, rogue cabinet secretaries should be targeted on a priority basis.
A Republican Senate will likely acquit or dismiss. But that doesn’t mean the House should abstain. At the very least it would expose the Senate’s complicity in executive corruption and abuse.
The articles against Trump should be specific and provable, but numerous. Going narrow on only this or that particular crime would be a mistake when there are so many crying out for the indictment of history. Alongside them should go articles against cabinet secretaries and agency heads who have carried out illegal orders, defied subpoenas, ignored courts, or lied to Congress. Those cases are easier to document and harder to dismiss as a vendetta against one man. There is even a chance some of them would face a more receptive Senate: Pete Hegseth, for example, was confirmed by the narrowest of margins and has not gotten any more popular on the Hill since then. Facing a Republican Senate, the House should move the cabinet cases first, where a conviction is at least conceivable, and build the record against Trump while those trials run. What it should not do is treat the one as a substitute for the other.
Refuse Confirmation of Extremist Judges and Secretaries
The Senate flips at 51, since the vice president breaks ties. A Democratic Senate of 51 or 52 seats is the most likely outcome. A majority that size can be held hostage by any one member, as Joe Manchin showed in 2021. Leadership should set the terms early and publicly, so that holding out carries a visible price.
The first thing a Democratic Senate gains is control of the confirmation calendar. No nominee gets a hearing unless the Judiciary Committee schedules one, and none reaches the floor unless the majority leader brings them there. Republicans used that control against Obama for two years. A Democratic Senate inherits the same power, and it is under no obligation to use it on Trump’s behalf.
That includes the Supreme Court. If a vacancy opens, it should stay open until January 2029. The ideological composition of the Court is in dire need of rebalancing. Mitch McConnell set that precedent in 2016 with most of a year left in Obama’s term, on the stated principle that the voters should weigh in first. The voters are about to weigh in. A Democratic Senate that confirms a Trump justice after that would be disarming unilaterally in a fight Republicans have shown no interest in ending.
The lower courts matter, too, and on this the second term has been far worse than the first. The Alliance for Justice’s review of last year’s nominees found them far more extreme than the first-term picks, with loyalty to Trump now a prerequisite. Nominee after nominee refused to say plainly that Biden won in 2020.
Emil Bove is the clearest example. A former Trump defense lawyer, he was accused by a Justice Department whistleblower of telling subordinates to defy a court order halting deportation flights of migrants to third countries. The Senate confirmed him to a federal appeals court 50-49. He is typical of the second-term nominees rather than an exception to them, and every such confirmation is a lifetime seat.
For the lower courts, a Democratic Senate needs to restore a practice that is a century old, not invent anything radical. Before the Judiciary Committee takes up a court nominee, it asks each of the nominee’s home-state senators to return a blue slip signaling approval. For much of that century, a nominee without both slips did not get a hearing. In 2017, Chuck Grassley, as chairman of the Judiciary Committee, stopped honoring it for appeals court nominees, which is how Trump has filled the circuit courts over the objections of Democratic senators. For district judges and U.S. attorneys, the practice has held, and Democrats can and should use it aggressively.
A Democratic Judiciary Committee should, at the least, restore the full version of blue slips: no hearing for any lower-court nominee, district or circuit, without both home-state senators signing off. This would force the administration to field reasonable candidates with bipartisan buy-in. On the Senate map Democrats are hoping for, most states would have at least one Democratic senator, giving them a real and substantive veto point over any except the most credibly unobjectionable picks. A blue slip is the senator’s to return or not, for any reason or none. It is a prerogative the Senate has recognized for generations, exercised one seat at a time by the senators who know the state and its bench best, and Republicans are the ones who chose to weaken it in order to empower Trump.
The Senate’s confirmation power also applies to executive nominees for the posts the administration has used to break the law: the Justice Department, Homeland Security, the Pentagon’s civilian leadership, and by now a good many others. Confirmation is the Senate’s endorsement. Withholding it from those offices is the Senate’s way of refusing to put its name on what is being done there, and of leaving the people doing it to serve without that cover.
The usual objection is the Vacancies Act: an administration that cannot get nominees confirmed fills the posts with acting officials instead. But acting officials have no Senate approval, limited tenure, and a legal footing that courts are increasingly willing to question. Alina Habba learned that when an appeals court held she was serving unlawfully as U.S. attorney in New Jersey. Tightening the Vacancies Act is also exactly the kind of provision that belongs in a must-pass bill. Trading confirmations for cooperation is a reasonable tactic with a normal administration. This is not one, and no promises exchanged in return for a confirmation are credible, either from Trump himself or his nominees. So long as Trump is in the White House, the only solution is to sharply restrict who he can appoint, not to extract non-binding promises he and his nominees have already repeatedly broken.
Pass Bills Constraining Executive Power
A Democratic Senate also means both chambers can pass bills, and they should pass a great many. Repeal of whatever tariff powers survived the Supreme Court’s ruling that the emergency-powers statute never authorized them. A rewritten Insurrection Act, the law governing when a president can deploy troops at home. Statutory independence for inspectors general and the civil service. A reaffirmation of the Impoundment Control Act, which bars presidents from refusing to spend appropriated money, with a right for those harmed to sue.
Passed as freestanding bills, each goes to the president’s desk, and each veto goes on the record. Bills that start in the Senate force every Republican senator to vote twice, once on passage and once on the override. Some of these will pick up Republican votes, as the tariff disapproval resolutions already have. That is worth doing for the record alone.
But the reforms Democrats want enacted now, while Trump still wields the veto, have to ride on the must-pass bills. With a Democratic Senate, those bills reach the president’s desk with conditions written by both chambers.
Impeach, Baby, Impeach
The impeachments the House sends over also get a real trial. Conviction requires 67 votes. With 51 or 52 Democrats, that means 15 or 16 Republicans. That is a high bar, but how many senators clear it depends on the trial. A Democratic majority sets the schedule, calls the witnesses, compels the documents, and makes every senator sit through the evidence before voting. Seven Republicans voted to convict in the five-day insurrection trial with no witnesses. A full trial, with a full record, against a president whose party has just lost a midterm, would be a different proceeding than summary dismissals by a Republican majority.
The majority also sets the rules, and the first rule it should change is how the final vote is cast. The Senate can adopt a secret ballot on conviction by simple majority under its own rulemaking power, with each senator’s vote recorded in the Senate’s journal and sealed for a term of years. Jeff Flake estimated in 2019 that at least 35 of his Republican colleagues would vote to remove Trump after the first impeachment if the vote were private.
A Senate of 53 or 54 Democrats is a real possibility. It would take sweeping most of the toss-ups, with a 54th seat coming from a Republican-leaning state like Kansas. Some projections already put the median outcome at 53.
That is still short of the 67 votes needed to convict, though every additional Democrat is one fewer Republican a conviction requires. What it buys is the ability to do all of the above without negotiating every step with the most reluctant member of the caucus, such as the increasingly unreliable John Fetterman, D-Pa. The Senate’s grip on confirmations holds. The impeachment trials run in full. Leadership, not whichever senator is most eager to cut a deal, sets the conditions on must-pass bills.
The vetoed bills still have a use. They become the drafts of what a Democratic trifecta could sign in 2029, and a comfortable majority can write them in detail and leave them waiting.
The through-line across all three tiers is the same. Congress has spent decades handing its powers to the executive, and the current administration has shown what a rogue executive can do with them. Congress will get those powers back only by refusing to fund, refusing to confirm, and refusing to pass what the administration needs until it gives up what Congress is owed.
Democrats have campaigned for two years on the claim that this is an emergency. If they win, they should act like it.
Deep Cuts is a weekly column by Andy Craig exploring the constitutional, philosophical, and historical roots of current events and the ongoing crisis of American democracy. To read past entries, go here.
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