Charlie Savage for The New York Times:
Nearly every president has pushed the bounds of executive
power to try to achieve something specific. And a handful of presidents who
took office during a true national crisis, like the Civil War or the depths of
the Great Depression, swiftly made a series of legally aggressive moves to
grapple with the challenges facing the country.
But the sheer volume and intensity of the power grab
President Trump has undertaken in the first 100 days of his second term — an
assault on legal constraints untethered to any equivalent catastrophe — is
unlike anything the United States has experienced.
“They are trying to do a moonshot on executive power,” said
Jack Goldsmith, a Harvard Law School professor and senior Justice Department
official in the George W. Bush administration.
The rule of law in the United States has been traditionally
understood to use checks and balances to prevent too much concentration of
arbitrary executive power. But the maximalist cascade in the early days of Mr.
Trump’s second term is testing the fundamental structures of American democracy
in a way that has never been seen before.
Mr. Trump, pursuing a confrontational style of presidential
politics, has unleashed an assault on counterweights to his authority:
attacking judges, sidelining Congress’s role in making decisions about taxes
and spending, steamrolling internal limits on the executive branch and using
the levers of government to try to force outside centers of power like law
firms and universities to submit to his will.
Akhil Reed Amar, a Yale Law School professor, said the
broader picture was of an administration that was “proudly lawless and
anti-law.” The danger, he added, “is that Trump is the most powerful person in
the world, and he does not seem to be very good at restraining himself and he’s
not getting any younger.”
In a recent interview with Time magazine, Mr. Trump was
repeatedly pressed on his attempts to increase presidential power. While his
answers largely meandered off topic, he denied that he was expanding executive
authority, said he was deploying power as it was meant to be used and claimed
an electoral mandate for his actions.
“I think I’m using it properly, and I’m also using it as per
my election,” he said.
Yet Mr. Trump has flaunted his disrespect for the other
branches of government. When it comes to the courts, he has denounced judges
who rule against him and called for their impeachment while his administration
has exploited loopholes and sidestepped complying with some of their
injunctions.
He and the president of El Salvador all but openly mocked a
Supreme Court order to facilitate the return of a man who was deported to a
Salvadoran prison despite an immigration judge’s order not to send him there,
acting as though bringing him back was impossible. Mr. Trump’s appointees fired a prosecutor because he spoke candidly to a
judge about that mistake.
When critics accuse Mr. Trump of being too aggressive in his
use of executive power, his team dodges the question of whether he is abusing
his authority by stating that the power legally exists. But the administration
is also pushing to change mainstream understandings to expand the authorities
available to him.
For example, Mr. Trump has repeatedly challenged the power
of the legislative branch. He unilaterally dismantled agencies Congress has
said shall exist as a matter of law. And he fired civil servants, inspectors
general and independent agency heads in defiance of job protections lawmakers
wrote into statutes.
His goal appears to be to get
the Supreme Court’s conservative majority to strike down those statutes and
enshrine into law the so-called unitary executive theory. Developed by the
Reagan administration’s legal team, the theory is a revisionist interpretation
of the Constitution. It would undercut the power of Congress to structure the
government and expand presidential power, rendering the executive branch more
comprehensively subject to Mr. Trump’s whims.
Mr. Trump has also assumed some of the traditional constitutional control delegated to
lawmakers over decisions about government spending and taxation. He froze the
expenditure of funds that Congress appropriated, and he unilaterally imposed
taxes on almost all imported goods from around the world.
Mr. Trump claimed the power to institute those sweeping
tariffs by invoking a 1977 emergency powers law that allows him to impose
economic sanctions to address an “unusual and extraordinary threat” from
abroad. That law does not mention tariffs and has never been used in that way
before.
Scholars of presidential power can identify seeds for some
of Mr. Trump’s moves in precedents set by past presidents, but they expressed
shock at the number of contestable actions he has initiated and the aggressive
use to which he has put them. Many of his executive orders, they say, are difficult
to connect to mainstream understandings of the law.
“We’ve been for a long time marching toward greater
executive power and more feckless Congresses — Republicans and Democrats both,
but a couple things seem to be different here,” said Michael W. McConnell, a
Stanford law professor and a former federal appeals court judge appointed by
Mr. Bush.
“One is just the volume — it’s an incredible spate of
activity on all kinds of different fronts, and at some point volume begins to
have a qualitative feel to it,” he said. “The second is that it seems to me
that a lot of it is being done with much less legal care. Every president makes
mistakes, but there has been a lot more sloppiness and I just can’t believe
they could possibly have been approved by the Office of Legal Counsel.”
That office, an arm of the Justice Department, has
traditionally been the center of executive branch lawyering and acted as an
internal check on the presidency. It decides which proposed actions would be
lawful or go too far, including vetting the legal and factual claims in draft
executive orders before approving them. But Mr.
Trump has largely sidelined it.
Control over legal vetting of Mr. Trump’s actions has shifted
to inside the White House and the orbit of his most influential policy aide,
Stephen Miller. While not a lawyer, Mr. Miller has played a key role in legal
staffing decisions and has advanced a view that because presidential elections
are conducted nationally, Mr. Trump embodies democratic legitimacy far more
than lawmakers or judges.
“The whole will of democracy is imbued into the elected
president,” Mr. Miller told reporters in February.
That perspective has bled into legal filings. One spurned a
judge’s demand for information about the administration’s decision to finish
transferring a group of Venezuelan migrants to a Salvadoran prison under a
wartime law, the Alien Enemies Act, despite his order to turn the planes
around. The judge should back off, the administration insisted, claiming that
Mr. Trump wields “plenary authority” over the matter derived from the
Constitution and the “mandate of the electorate.”
The administration made that claim as part of an unusually
aggressive invocation of the
state secrets privilege, a power the executive branch can use to prevent
the exposure of sensitive national security information in court. Typically,
presidents used it only for classified information, which they showed to judges
in private. Neither is the case in the current clash.
Mr. Trump appears to see even less reason for
self-constraint than in his first term. His hammerlock has only tightened over
the Republican Party, which in turn controls the legislative branch, meaning he
has no fear of impeachment. One Republican senator, Lisa Murkowski of
Alaska, recently
admitted that “we are all afraid” of Mr. Trump.
He has also been unleashed in part thanks to the Supreme
Court, whose six Republican appointees last year granted presidents broad
immunity from prosecution for crimes committed using their official powers,
especially in their interactions with the Justice Department.
The president, far more than in his first term, has cast
aside a post-Watergate norm that the White House should stay out of law
enforcement decisions. After years of baselessly accusing Barack Obama and
Joseph R. Biden Jr. of directing investigations into him, he has made a reality
the very weaponization of the Justice Department he once railed against.
Already, Mr. Trump has ordered
prosecutors to scrutinize a top cybersecurity aide during his first
term, Christopher Krebs, who fell from his favor by contradicting conspiracy
theories that voting machines had been hacked to rig the 2020 election in favor
of Mr. Biden.
Mr. Trump directed a similar review by the Department of
Homeland Security into Miles Taylor, another first-term official who criticized
him. And last week, Mr. Trump ordered the Justice Department to scrutinize
ActBlue, the Democratic Party’s top fund-raising platform.
Mr. Trump is turning the department into his personal
instrument in other ways, installing his own defense lawyers as its leaders.
Among other actions, they dropped a corruption case against Mayor Eric Adams of
New York in what a U.S. attorney denounced as an unethical abuse of law
enforcement power to coerce his help in
enacting the president’s deportation agenda. The move prompted a wave of resignations by prosecutors.
It is too early to know how the system will stand up to this
broad and multifaceted effort to concentrate greater power over the government
and American society in Mr. Trump’s hands.
At the moment, Congress is providing no check on him. If
Democrats retake the House in the 2026 midterm elections, they could start
trying to perform oversight or conduct impeachment hearings. Still, after the
2018 midterms, Mr. Trump vowed
to stonewall their subpoenas. And while the House twice impeached him,
Senate Republicans protected him from conviction.
Several judges have started to raise the possibility
of holding
Trump administration officials in contempt for defying their orders. But
courts generally must rely on the Justice Department to prosecute criminal
contempt. Even if a judge appointed a special prosecutor, the department
controls federal marshals and prisons, and Mr. Trump could pardon
a defendant.
The Supreme Court has yet to rule on the merits of any of
Mr. Trump’s moves. But in recent weeks, the justices issued
an extraordinary order to block, for now, further deportations under
the Alien Enemies Act even though the department said there were no plans for
any. Some observers have interpreted the apparently 7-to-2 vote as a sign that
a majority of the justices are skeptical that the administration can be trusted.
Professor Amar pointed to another guardrail that appears to
be somewhat effective: the financial markets, whose negative reaction to Mr.
Trump’s tariff policies and the prospect that the president would fire the
Federal Reserve chair seem to have prompted him to pull back.
But most of what the president is doing is not subject to
market feedback.
When Mr. Trump was blowing through norms in his first term,
Professor Goldsmith argued against alarmism, saying that institutional constraints would hold. But, he says, matters
are “much more precarious this time” because Congress has been doing nothing to
curb the White House and Mr. Trump has neutralized internal checks on the
executive branch.
“That is massively different, and it just leaves the courts
out there by themselves with civil society,” he said. “The administration
hasn’t crushed them yet, but they are trying to. I definitely think this
situation is a much more dangerous threat to the rule of law than the last
time.”
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