Trump Testing Legal Limits
The courts will decide whether we have a President or a King.
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WaPo’s Lisa Rein (“How Trump is stretching laws to make the federal government more political“):
With a blizzard of executive orders, President Donald Trump has jump-started an extraordinary plan to transform the federal government into a leaner operation packed with his loyalists.
The fine print of those directives reveals how shrewdly the new administration is maneuvering — and sometimes outright ignoring — the arcane laws, rules and regulations that have long protected the civil service of 2.3 million from a political takeover.
Trump has skirted Biden-era rules by essentially declaring them unlawful, used probationary periods to place masses of civil servants in limbo and issued a memo lifting restrictions on hiring temporary political appointees to replace thousands of career employees. The White House has even declared that Trump can overrule a post-Watergate law to summarily fire senior executives and career prosecutors, citing a sweeping claim of executive authority.
Late Friday, when Trump ousted 17 federal watchdogs, he disregarded a statute requiring him to first provide 30 days’ notice and a performance-related justification to Congress.
White House directives also have instructed federal agencies to seek ways to bring employees back to the office even if union contracts guarantee work-from-home protections and announced plans to reinstate assessments for hiring that were thrown out by the Carter administration after lawsuits claimed they were discriminatory. And acting personnel officials have widely expanded the use of paid leave to push workers out — despite a bipartisan law seeking to curtail its use.
The executive actions, absent any legislation from the GOP-controlled Congress, already have had far-reaching effects, even if they face potential legal challenges. Thousands of staff members in diversity and inclusion programs are facing layoffs as soon as this week, thousands of other job offers have been rescinded in a government-wide hiring freeze, and gaping senior-level holes remain at numerous agencies because of purges and an exodus of experienced staff members.
The sweeping changes reflect Trump’s campaign pledge to “dismantle the deep state” by firing bureaucrats he blamed for thwarting his first-term agenda. His executive orders could transform an experienced, merit-based federal bureaucracy into one governed by employees with political allegiance to the Trump administration.
“These actions are opening much more of the civil service to be chosen by the Trump administration than would be usually seen during a change in administration,” said Kevin Owen, a Washington-area employment lawyer who represents federal employees.
In Trump’s first term, inexperience and chaos slowed much of his plan to weaken the civil service. But the barrage of eight executive orders and as many personnel memorandums in the opening days of his second term bears out how carefully his new administration prepared for this moment. Since Trump’s victory in November, his domestic policy team has raced to determine which interpretations of the law would be novel but legal, which might get the administration sued and which legal challenges they could accept, according to people familiar with their thinking.
“The administration is clearly better prepared this time than they were in 2016,” said Donald Moynihan, a civil service expert who teaches public policy at the University of Michigan. “They’ve been waiting for this moment, and their preparation is being turned into policy.”
Karoline Leavitt, Trump’s press secretary, said on Tuesday that the president’s broad executive power allows him to fire anyone in the executive branch. “We will win in court” on any legal challenges, she added.
Dan Froomkin (“The lawyers are getting louder – and they’re getting results“) begs to differ:
You can’t do that.
That’s the message that lawyers for the progressive advocacy community are sending Donald Trump loud and clear about at least nine things he’s trying to do.
Let’s start with the huge win on Tuesday night, as Democracy Forward won a court order temporarily blocking a White House freeze on billions of dollars in federal grants and loans.
He details nine other legal challenges that are filed or in the works, with surely more to come.
But the NYT’s Charlie Savage (“Defying Legal Limits, Trump Firings Set Up Tests That Could Expand His Power“) thinks getting sued is part of the strategy.
President Trump abruptly fired dozens of officials in the past few days — including inspectors general, a member of the National Labor Relations Board and career prosecutors — in ways that apparently violated federal laws, setting up the possibility of lawsuits.
But the prospect of getting dragged into court may be exactly what Mr. Trump’s lawyers are hoping for. There is a risk that judges may determine that some of the dismissals were illegal, but any rulings in the president’s favor would establish precedents that would expand presidential power to control the federal government.
Some legal experts say the purges underway appear to be custom-made opportunities for the Supreme Court’s Republican-appointed majority to strike down the statutes any legal challenges would be based on, furthering its trend in recent years of expanding presidential authority.
“On one level, this seems designed to invite courts to push back because much of it is illegal and the overall message is a boundless view of executive power,” said Jack Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel in the Bush administration. “But really, they are clearly setting up test cases.”
Five of the nine Supreme Court justices worked as executive branch lawyers during the Reagan and George W. Bush administrations. Their legal teams were both defined by an expansive view of executive power, including developing theories of the Constitution that would invalidate congressional restrictions on the White House.
The rest of Savage’s analysis is about the so-called Unitary Executive Theory and the degree to which some of the Justices may be predisposed to it. We’ve batted that one around quite a bit over the last few years.
I’ve largely given up predicting what this Supreme Court will do now that it has abandoned the pretense of following well-established precedent, the bedrock of a common law system. Still, I simply don’t know where he would get the legal authority to do most of the things he’s ordering.
Even if Presidents are immune from criminal prosecution for official acts, they and their officials are still bound by the Constitution and applicable federal laws.
Congress passes budgets and authorizes spending. If Presidents can simply spend the money however they wish, deciding not to fund programs for which Congress has appropriated them and instead fund programs Congress hasn’t authorized, the Power of the Purse is meaningless. We wouldn’t have to have government shutdowns or worry about the debt ceiling, either, since the Executive branch pretty much is “the government” from an administrative point of view.
Similarly, all of the agencies of the Executive Branch are manifestations of Congress’ authority. They are all created by Acts of Congress and funded by Congressional appropriations withing the limits of Congressional authorizations. If the President can simply order the laws to be ignored, the entire arrangement is meaningless.
Indeed.
I think for sure that getting sued is part of the strategy.
All this stuff is legal for Republicans. But no one else.
There are four justices prepared to give Trump anything he wants – unless of course Trump has opinions on the 2d amendment. They would literally cancel the 1st amendment if Trump demanded it. The German legal establishment in the 1930’s had more integrity. We are no more than one vote away from the end of democracy, and the end of the rule of law, in this country.
I’m with Savage on this. I think that Trump and his people are flooding the legal zone, and very much want this Court to decide. I have to believe that they like their chances.
If Alito, Thomas and Gorsuch are in the mood, we’re going to see some very interesting Originalist thinking regarding the so-called Unitary Executive (a very woke term , we used to call them ‘Kings.’)
@Steven L. Taylor: Absolutely it is. It’s the same principle as passing state laws restricting abortion prior to the overturning of Roe. Force as much as possible before the Supreme Court, now that they have a comfortable majority there, in the hopes that the Court will codify the expansive moves they are making.
I hope the Court’s “originalists” are in yoga classes, because boy, are they going to need to stretch if they are of a mind to enable Trump’s moves. A truly unitary executive branch very much flies in the face of our government–and, would undercut the authority of the Judicial branch.
@Jen:
Completely agree. It also seems like it would be very hard to square with the recent ruling overturning Chevron.
Of course, the only response is to fight every hairbrained, toxic Trump initiative with all the legal and procedural resources at our disposal.
But as President, Trump has tapped into the “motherlode” of resources — the taxpayer funded largess of the federal government. And he’s come more organized with an army and a plan (as pathological as it may be).
In the case of Trump’s deranged leadership, “reality outcomes” are limiting factors. As harsh as that will be upon our society, it will be those failures that limit Trump’s range.
And it has been astutely suggested that Trump be made to own his failures; loudly, broadly, repeatedly. Make Trump “wear his Presidency” like a hairshirt without allowing him to scapegoat his failures.
Interdict when possible, heap derision on fails.
Civilization’s Note to Self:
do not choose pathologically impaired personalities for leadership positions, especially toxic narcissists and misanthrops. Antisocial personality disorders do not match well with pro-society needs and the stability of social process.
How much does all of this “fight everything in court” approach cost? I mean the bizzlions of $$$ that are wasted over all this has to add up to a net drain on our economy at some point.
I suppose the plan id for the Crow & Leo court to rule as they are instructed. the question then would be: who gives them their orders?
The job of the seditious six is merely to rationalize why an unconstitutional law or order is actually constitutional, and to write opinions that steer things in the desired direction. Any pretense of an actual court of law is just a pretense.
A quibble. Your subhead says, “the courts will decide”. It eventually comes down to only one Court. A Court 67% owned by Koch Inc. and partners.
MAGAs should be careful what they wish for regarding the creation of legal precedent that endows the president with absolute power. What happens when a Dem who is as “aggressive” as Trump gets to 1600 Pennsylvania Avenue? Would the SCOTUS have to revisit all all the cases that green lighted the Project 2025 wrecking ball, and pull the life support plug of stare decisis? @Jen’s yoga analogy is spot on.
@Charley in Cleveland:
The problem with that (and it gets brought up a lot) is that Dem presidents just don’t do it. In fact they bend over backward to try and avoid overstepping power (see Biden doing nothing to get Merrick Garland to act).
@Pylon: Oh, come on. Dem Presidents have been grossly overstepping power since Jefferson and Jackson (take your pick as to who was the first). Ditto Republicans going back to Lincoln (definitely the first). Obama and Biden definitely abused the Executive Order power to sidestep a recalcitrant Senate.
It’s just that Trump doesn’t care at all about even giving the appearance of giving a shit about the Constitution and the rule of law. A difference in degree is a difference in kind in this regard.
Anticipate a completely new Office of Legal Councel. It will be reconfigured for the role of defending Trump no matter what he does and will have a practically unlimited budget. Rendered suitably bereft of ethics, it will be a formidable tool to extend anything and everything for years.
I suspect that for the next two years, at least, Trump will get his way in everything he wants.
@James Joyner: That’s some weak tea both siderism. Pushing aside Jefferson and others which is tangential to the current conversation, name one controversial EO which relied on the powers of the executive last term. I can only think the college tuition matter that was then defanged by the S. Ct. However, in one week alone there must be clearly half a dozen illegal orders. There really is no comparison.
“The problem with that (and it gets brought up a lot) is that Dem presidents just don’t do it.”
No, they actually do it occasionally, though not nearly to the degree Trump is doing it. However, SCOTUS often overturned those EOs. They arent likely to do that with Trump. When a Dem comes back in office they can always claim the Trump rulings were narrow and dont apply. It’s very much a heads I win, tails you lose situation.
Steve
Perhaps I’m overly cynical, or missing some subtle complexities in the situation, but Trump’s intentions seem perfectly clear to me: do whatever he wants, and if a court tries to stop him, ignore the court. He’s done with your laws and constitution. His personal lawyers now run the DoJ, his sworn acolytes run the Dept of Defense, his faithful attack dog is about to run the FBI, his administration will soon be managed by hand-picked Heritage Foundation MAGA people … who is going to enforce court orders if Trump ignores them. Constitutional sheriffs?
I think Trump craves his Andrew Jackson moment…he would love for the Supreme Court to strike down one of his edicts, then dismiss the Court’s ruling and do it anyway. What would the repercussion be? As we know from Jackson’s response in Worcester v. Georgia, the Court cannot enforce its decisions. The only institution that might conceivably act to try to force the president to respect a Supreme Court decision or punish him for refusing to do so is Congress, and that’s not going to happen.