The case for checks and balances, separation of powers, and constrained presidential authority

If ever one needed evidence of the necessity for limits on executive power, President Donald Trump has now provided it, writes David Cole in The New York Review of Books. The first three weeks of his second term are Exhibit A in the case for checks and balances, separation of powers, and constrained presidential authority. He has sought to effectively shutter an agency established by Congress, USAID. He tried to freeze all federal funding, in contravention both of statutes requiring that the funds be spent and of countless contractual obligations. In a brazen effort to remake the federal government in his image, he offered without any authorization to buy out federal employees if they voluntarily resigned. He has attempted to end birthright citizenship, a right expressly guaranteed by the Fourteenth Amendment. He ordered the interim US Attorney for the District of Columbia to fire dozens of lawyers who prosecuted the January 6 insurrectionists, and threatened to fire the FBI agents involved, even though they were only doing their jobs. His Attorney General has directed the Justice Department to criminally investigate businesses for DEI programs—even though Congress has not made offering such programs a crime under any circumstances. And he dismissed seventeen inspectors general, the watchdogs for abuse and fraud within the executive branch, without providing the notice and reasons required by statute. The list goes on.  

The targets of these and other measures have not been shy about pushing back, filing legal challenges in the courts. (The online publication Just Security keeps an excellent tracker of this litigation.) Thus far, to put it mildly, the president is not faring well. Courts have blocked him from halting federal funding, closing USAID, removing birthright citizenship, giving Elon Musk’s Department of Government Efficiency access to sensitive information on millions of people held by the Treasury Department, and imposing a February 6 deadline for federal employees to take his illegal buyout. Two courts have blocked his cruel and unfounded directive to transfer transgender women to men’s prisons, even where prison authorities have determined that they should be housed in women’s prisons for their safety. (To be clear, much damage remains, as many of the executive orders are in place and probably not illegal—just heartless, counterproductive, and stupid.) The judges who have blocked his actions were appointed by Republicans and Democrats, even in one case by Trump himself. The courts, in other words, are for the most part doing their job—checking unprecedented abuses of presidential power. 

The ultimate fate of many if not most of these initiatives will likely be determined by the Supreme Court. That is worrying, because for many years this Supreme Court—deeply distrustful of the “administrative state” and of congressional efforts to rein in presidential authority—has undertaken a campaign to grant the president centralized, consolidated power. In the name of the “unitary executive,” a theory that the president must have unilateral control over the executive branch, the Court has repeatedly struck down limits on the president’s power to remove federal officials. Last term it went still further, granting President Trump himself unprecedented immunity even for criminal conduct, reasoning that subjecting a president to the criminal accountability everyone else faces—even after he has left office—could impermissibly interfere with his unilateral powers, such as the pardon authority, and more generally unduly hinder his freedom and willingness to carry out his duties.

It is hard to say how much that decision informs the president’s current overreach. But in any case this time around Trump is more than unhindered; he is unhinged. Many have wondered whether Trump will go so far as to simply defy the Supreme Court if it rules against him. Over the weekend, Vice President J.D. Vance poured gasoline on that speculation by tweeting that “judges aren’t allowed to control the executive’s legitimate power.” A lot of work is being done in that sentence by the word “legitimate,” but in our system it is the Court, not the executive, that determines whether the executive’s actions are legitimate, as in legal. If Trump did choose to disobey the Court’s justices on the grounds that they “aren’t allowed” to regulate his executive actions, it would cross a line that no president has ever crossed and likely ignite an entirely justified political firestorm.  

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