Here’s what Democrats in Congress can feasibly do to fight Trump’s agenda | Opinion

Those who oppose the Trump administration’s myriad actions are understandably upset that Democrats in Congress have not done more. But, as the minority party, what can they actually do?

With a Republican majority in both the Senate and the House, Democrats cannot convene hearings, bring matters for a vote or pass bills. But although they cannot pursue a legislative agenda of their own, they have the power to block at least some of President Donald Trump’s efforts.

In the House of Representatives, the Republican majority is small — 218 to 215 — that Democrats can succeed if they can get even two Republican representatives to join them. So far, however, Republicans have acted in virtually complete lockstep, showing an unwillingness to buck Trump.

In the Senate, where the Republican majority is a bit larger — 53 to 47 — and with Vice President JD Vance able to break any tie, there has also been remarkable adherence to the Trump agenda. The Senate confirmed every one of Trump’s highly questionable nominees, including Pete Hegseth as Secretary of Defense, Robert F. Kennedy Jr. as Secretary of Health and Human Services, Tulsi Gabbard as Director of National Intelligence and Kash Patel as Director of the Federal Bureau of Investigation.

Senate Democrats have the ability to use the filibuster to block Trump’s proposed legislation from being adopted. Under Senate Rules, the filibuster cannot be used for budget reconciliation legislation or for presidential nominations. But all other legislation is subject to a filibuster and thus requires 60 votes for passage.

The reality, though, is that there is little that Democrats can do in Congress to block Trump’s use of executive orders and spending freezes, even when they are clearly unconstitutional. But could Democratic Representatives and Senators go to court and bring lawsuits challenging these actions?

The answer is sometimes. In order for any plaintiff to sue in federal court, there must be “standing” to bring the case. The Supreme Court has long said this requires plaintiffs to demonstrate that they have been personally injured, that their injury was caused by the defendant and that a favorable federal court decision is likely to remedy the injury.

The court has been especially restrictive about allowing members of Congress to sue. Its concern is that there is always a loser in the legislative process and the court does not want them to be able to easily turn to the judiciary to overturn their legislative failures.

The leading Supreme Court case about the ability of members of Congress to sue is the 1997 case Raines v. Byrd. Congress passed the Line Item Veto Act, which authorized the president to veto parts of taxing and spending bills rather than having to sign or veto the entire bill. The day after the act went into effect, members of Congress sued and challenged its constitutionality. The Supreme Court ruled that the members lacked standing to sue, stressing that they “have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill and that the bill was nonetheless deemed defeated. Nor can they allege that the act will nullify their votes in the future.”

After Raines v. Byrd, legislators have standing only if they allege either that they have been singled out for especially unfavorable treatment or that their votes have been denied or nullified.

Although this limits when members of Congress can sue, it opens the door to suits by House Representatives and Senators to challenge some of Trump’s actions. For example, the president has frozen large amounts of federal spending (some estimates have been that the Trump administration has frozen as much as $3 trillion that had been appropriated by federal statutes). This usurps Congress’ spending power granted by Article I of the Constitution and violates the Impoundment Control Act of 1974. It also effectively nullifies the decisions of Congress in passing budget legislation.

Similarly, there is a basis for Senate Democrats to challenge the powers granted to Elon Musk in his leadership capacity at the new federal Department of Government Efficiency. He is obviously functioning as a very powerful officer of the United States, and, under Article II of the Constitution, officers must be confirmed by the Senate. Trump has nullified the Senate’s role by bestowing great authority on Musk without Senate confirmation.

Of course, many others — besides members of Congress — can and have sued to stop the unconstitutional and illegal Trump actions. And there is much more that Democrats in Congress can do: Although they cannot convene formal hearings, nothing prevents them from convening public sessions where they draw public attention to the harms of the Trump administration’s policies.

Indeed, their greatest power is their ability to use their elected positions to speak out and be a voice against how the Trump administration is violating the law, undermining the Constitution, devastating essential parts of the federal government and inflicting great harms. Democrats in Congress must be leaders in explaining this to the public and advancing a very different vision for government. When they can, they should use their powers to block Trump efforts in Congress and even go to the federal courts.

This story was originally published March 6, 2025 at 5:00 AM.