Trump Tests the Courts

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Nothing could have prepared Americans for what the first 50-ish days of the second Trump administration have been like. Even some Cabinet members and Republican members of Congress seem caught off guard. But if you took time to look closely at Project 2025, the effort from the conservative Heritage Foundation to prepare for a new Republican administration, you’re probably a little less shocked than other people.

I’m not the first to point out that many of the actions the White House and other departments have taken since the inauguration are pulled directly from Project 2025. Even though Donald Trump vociferously denied any connection to the work during the campaign, that was always transparent bunk. For example, Russell Vought, an architect of Project 2025, led the Office of Management and Budget in the first Trump White House, was the policy director for the Republican National Committee’s 2024 platform, and is now leading OMB again.

There are some useful resources online that seek to track which Project 2025 goals have already been achieved, but for all that Trump has done so far, some of Project 2025’s most radical ideas for transforming the power of the president have yet to unfold. What is still in store?

The authors of Project 2025 believe that far too much of the executive branch is not functionally under the control of the president. “What we’re trying to do is identify the pockets of independence and seize them,” Vought told The New York Times in 2023. One example is what are called “independent regulatory agencies”—entitites such as the Federal Reserve, the Securities and Exchange Commission, and the Consumer Product Safety Commission. The laws that authorize these agencies give the president the power to appoint leaders, but not generally to remove them or direct policy. That’s different from, for example, a Cabinet department such as State and Treasury, whose secretaries can be fired at will.

“The Trump team came in determined to expand the scope of presidential power,” Don Kettl, the former dean of the University of Maryland School of Public Policy, told me in an email. “Their goal is to stretch the limits of Article II of the Constitution, by using the beginning of the article—that executive power is located in the president of the U.S.—and the take-care clause, to assert that the president has power over all things executive. Congress might pass a law, but once the law is passed, they believe the president ought to have complete control over how it’s implemented.”

Many of the moves that Trump has taken so far appear to be of dubious legality. This week, Vought’s OMB issued a memo laying out plans for mass layoffs of federal employees subject to civil-service protections. Such a reduction in force almost certainly violates civil-service protections and bargaining agreements. Similarly, last week, the administration issued a little-noticed but potentially very important executive order asserting unprecedented power over independent regulatory agencies, cutting against decades of precedent and understanding of existing laws.

These are only the latest examples of the Trump administration’s apparent defiance of Congress’s intent. As Jonathan Rauch noted this week, Trump has fired inspectors general without giving the legally required 30-day notice, even though he could have easily just followed the law. The president also tried to fire Hampton Dellinger, the head of the Office of Special Counsel, which protects whistleblowers; Dellinger promptly sued, and his firing is currently temporarily blocked by courts. Last week, the administration asserted a right to fire administrative-law judges, who oversee hearings inside executive-branch agencies, even though the law says they can be removed only for cause.

The statutes that govern these matters are not especially ambiguous: Congress intended for these bodies to have some independence. Trump’s aides don’t disagree; they just think that the laws are an unconstitutional infringement on the powers of the executive branch. “There are no independent agencies. Congress may have viewed them as such—SEC or the FCC, CFPB, the whole alphabet soup—but that is not something that the Constitution understands,” Vought told Tucker Carlson in November. Unfortunately for Trump, the Supreme Court has disagreed. In a 1935 case called Humphrey’s Executor, the justices unanimously slapped down President Franklin D. Roosevelt’s attempt to fire a member of the Federal Trade Commission.

As Trump takes so many steps, some observers have expressed concern that Trump intends to just ignore courts. This isn’t a crazy fear. Trump has shown that he has no personal respect for the rule of law, and many of his aides—including Bureaucrat in Chief Elon Musk and Vice President J. D. Vance—have floated the idea of defying judicial rulings. But I think the more likely interpretation (at least for now) is that many of these law-defying, or at least law-bending, actions are ways of getting cases before the Supreme Court in the hopes of eliciting favorable decisions.

“The Supreme Court ruling in Humphrey’s Executor upholding agency independence seems ripe for revisiting—and perhaps sooner than later,” the law professor Adam Candeub writes in “Mandate for Leadership,” the main document produced by Project 2025. (He’s since been appointed general counsel of the Federal Communications Commission.) Elsewhere in “Mandate,” Gene Hamilton, who helped design the family-separation policy in Trump’s first term, writes that a conservative administration should seek “the overruling of Humphrey’s Executor v. United States … The next conservative Administration should formally take the position that Humphrey’s Executor violates the Constitution’s separation of powers.”

How the Court would handle such a case is anyone’s guess. Clarence Thomas and Neil Gorsuch have already said they’d overturn Humphrey’s Executor; Republicans have long pushed for the “unitary executive theory,” which seeks an expansion of the president’s power over the executive branch; and the justices have shown a willingness to bend precedents to help Trump in the past.

The impact of striking down Humphrey’s Executor would be enormous. Agency independence is designed to provide regulatory predictability and consistency and to avoid political interference, but Project 2025 proposes systematically politicizing independent agencies, seeking to use federal power to attack climate-focused investing, compel private corporations’ business decisions, and more. This is especially dangerous with a president who has already begun following through on his campaign promises to use the government to punish his critics, but it would be destabilizing under other circumstances. Any future Democratic president would at least try to return things to the status quo ante, which would mean a wild seesaw in regulation every four or eight years.

Alternatively, the Supreme Court might blanch before such a shift of power from Congress to the executive branch. In 2024’s Loper Bright v. Raimondo decision, it struck down Chevron deference, which accorded executive-branch agencies broad discretion in interpreting laws, saying that Congress needed to make those decisions. If Trump’s test cases fail, what comes next?

“I always abide by the courts, always abide by them,” Trump said earlier this month. Yesterday, his nominees for top Justice Department roles told senators that they believed the administration could at times ignore judicial orders. We may soon find out which of them is telling the truth.

Here are four new stories from The Atlantic:

Today’s News

Donald Trump hosted U.K. Prime Minister Keir Starmer at the White House to discuss issues including trade and Ukraine’s future.
The Trump administration notified most USAID staffers this week that they have been placed on leave or fired and announced that 90 percent of the agency’s foreign-aid contracts worldwide will be canceled.
Trump announced that 25 percent tariffs on imports from Canada and Mexico will go into effect on March 4, and that China will face an additional 10 percent tariff.

Dispatches

Time-Travel Thursdays: Who counts as a hillbilly—and who gets to decide? Andrew Aoyama examines the complicated history of Appalachia and J. D. Vance’s ties.

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Evening Read

My Mom’s Guide to the Art of Living

By Arthur C. Brooks

My late mother was an artist of some renown in the Pacific Northwest. Over her many-decades career, her paintings evolved from highly representational watercolors into mixed-media abstracts. One constant in her work, however, was excellent technique: If she decided to paint a naked guy holding a guitar, much to the mortification of her adolescent son, that’s exactly what it looked like.

Growing up, I could draw a little myself and enjoyed doing so, but I never had her talent. Once, I asked her how I could improve. I suppose I expected her to say something like “Practice 10,000 hours.” Instead, she told me to look at what I wanted to draw.

Read the full article.