Through the sometimes blinding storm of executive orders and memorandums in the opening days of President Trump’s new administration, one pattern is already becoming clear: This is not a crew particularly interested in law.
Within its first nine days, the administration declared it was freezing trillions of dollars in federal grants and loans — a move that at worst violates Article I of the Constitution, which gives Congress the power to decide how taxpayer dollars are spent, and at best violates Article II, which requires the president to ‘faithfully execute” the laws Congress passes.
Mr. Trump fired career officials, flouting laws designed to ensure that government employment is based on merit, not personal loyalty, and then busily began clearing the Department of Justice of career legal staff members so he could replace them with loyalists. And he issued an executive order claiming to eliminate automatic birthright citizenship, in defiance not just of the 14th Amendment but also of the foundational idea that citizens decide who should be a president, not the other way around.
Mr. Trump is hardly the first president to claim broad executive power. The difference this time is not only the enormity of his claims — a level of authoritarian aspiration that far exceeds any other in the modern American age. It’s that the administration hardly even bothers to try to craft legal justifications for its actions.
Many of its orders and memorandums so far are bafflingly vague and internally contradictory, some checkered with embarrassing errors, others largely devoid of references to law. These are not the strategic moves of a legal A team focused on insulating itself against judicial correction, or teeing up a model case to persuade the courts to move the law in a new direction. These seem more like the orders of a team unconcerned with the risks of any legal challenge at all.
Is it true that the law poses no serious obstacle to the ambitions of the new administration’s leaders? Americans’ confidence in the Supreme Court is at a historical polling low, and a large majority say the Supreme Court is more motivated by politics than law. The left in particular seems prone to despair about whether the courts will slow our autocratic slide. But that despair is premature. The legal system is not so easily dismissed.
The assumption that the courts will simply capitulate to Mr. Trump is based on some important misunderstandings — starting with the meaning of Trump v. United States, in which the Supreme Court ruled that presidents have substantial immunity from criminal liability for official conduct while in office. As shocking as the decision was, criminal or even civil liability is only one way that our legal system can check executive overreach. Another way — far more relevant here — is by ordering government agencies to take (or stop taking) some action.
That is what a Federal District Court judge, John C. Coughenour, did last week in temporarily blocking Mr. Trump’s birthright citizenship order. That is also what the lawsuits filed in response to the freeze on federal grants seek. The president’s personal immunity from criminal prosecution is irrelevant to these cases.
What’s more, the courts are not so dominated by partisan judges that any action challenging a Republican president will inevitably fail. Between 2017 and 2021, Mr. Trump succeeded in appointing more than 200 judges to the federal bench, and Republican-appointed justices held a majority on the Supreme Court throughout. Yet researchers have since found that the first Trump administration had the worst win-loss record of cases before the Supreme Court compared with any other administration since at least 1937.
In court challenges involving administrative agency disputes, the administration was unsuccessful more than 75 percent of the time, including some of the cases that mattered to Mr. Trump most.
But even that abysmal record understates how often the law functioned to thwart many of Mr. Trump’s most lawless efforts. Lawyers within the government successfully deterred him from some of the worst abuses of power well before the matter got anywhere near a court — including his attempts in his previous term to use the Department of Justice to pursue politically motivated prosecutions.
Of course, Mr. Trump and his people have vowed that will never happen again. That’s why they’re in the process of replacing career lawyers inside the Justice Department with people whose personal loyalty they trust more.
But getting lawyers to back absolutely anything Mr. Trump wants may not be as easy as the president and his advisers think. Politicians can lie all they like, but lawyers are bound by professional rules of ethics. Refusing to follow all of Mr. Trump’s orders could endanger their jobs; following him too blindly, however, may risk endangering their entire careers (as Michael Cohen, Rudy Giuliani and others learned the hard way). That may explain why some of these early orders in the new administration are largely devoid of specific legal guidance — and why they stand a fair chance of being overturned in the courts.
None of this is to suggest that the courts — or the law more broadly — are a singular force that can keep our constitutional democracy from veering into autocracy. Quite the contrary: Mr. Trump will lose some of these cases in the courts, but almost certainly not all of them.
Presidents have enormous power under the law; part of what Mr. Trump is doing is just inoking the breadth of that authority. The deeply conservative supermajority on the Supreme Court will matter in some cases. So, too, will the reaction of the public and Congress if and when the administration moves to defy the courts outright.
But already, the Trump administration has backpedaled on the spending freeze, after less than two days of public outcry and confusion. That’s why it matters that all kinds of forces, from Congress to state legislatures to popular pressure, find the courage to push back against truly lawless executive actions.
For those worried about the fate of our democracy, it would be foolish to rely on the rule of law alone. But it would also be wrong to simply write it off as a meaningless check on presidential authority. That kind of pessimism becomes our self-fulfilling fate. The new president may be aiming for authoritarian control. But the law is not fully his yet.
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