Trump and Musk's Lawless Power Grab Is Scrambling the Legal Resistance

Yahoo

24-02-2025

Last week, the Trump administration issued an executive order with an Orwellian name: 'Ensuring Lawful Governance and Implementing the President's 'Department of Government Efficiency' Deregulatory Initiative.' It directs all federal agencies—including independent agencies—to work with Elon Musks's DOGE and the Office of Management and Budget to identify regulations under their jurisdiction that are inconsistent 'with law and Administration policy.'
The law and the Trump administration's policy, though, are quite distinct. The White House's attempts to purge the federal workforce, close down entire departments, and centralize power in the executive branch are patently lawless. 'Trump is assuming no boundaries,' says Earthjustice President Abigail Dillen, whose group is working on several lawsuits challenging the administration's decisions. 'They're waiting for someone to throw up some boundaries. As long as that's not happening they're going to do whatever they want.'
The courts have long been a venue for fights between industry interests, state governments, and environmental advocates. But the Trump administration's attack on the separation of powers means the battles that groups like Earthjustice wage in the courts are now about much more than policy disagreements. As climate and environmental groups try to keep the Trump administration from letting polluters regulate themselves, that is, they'll also be fighting to keep him from ruling like a dictator.
'None of this is authorized,' said K. Sabeel Rahman, a professor at Cornell Law School who served as senior counselor and associate administrator in the Office of Information and Regulatory Affairs during the Biden administration. 'All of this is beyond the scope of congressional authority.'
Republicans' unified control of Washington means they could pass legislation to cement their policies in law, and even grant DOGE vast powers. Indeed, the GOP Congress is working furiously on a reconciliation package littered with massive program cuts, notably to Medicaid, in order to fund tax cuts for the rich. But Trump and Musk are too impatient to wait for their allies on Capitol Hill to deliver. They're taking a chainsaw to agencies and attempting to radically expand their power—without any resistance from the increasingly disempowered Republicans in Congress.
'This is not the old left-right fight over regulation,' Rahman said. 'We can have a policy dispute about the scope of financial and climate regulations, and there are perfectly legal ways for a conservative administration to make a radical about-face on all of these issues.' Instead, he added, 'the president is declaring what the law is by fiat… This is not about policy. This is about the functional collapse of constitutional checks and balances.'
An irony in all this is that the conservative legal movement has spent years and untold millions on targeting government agencies' prerogative to interpret federal statutes. Recent landmark decisions by the majority-conservative Supreme Court have given the judiciary branch more power to decide what agencies can do. SCOTUS's ruling in Loper Bright Enterprises v. Raimondo, for instance, overturned a long-standing precedent known as the Chevron deference, which granted agencies the ability to interpret legislation. In West Virginia v. EPA, the Court opened the door for challenging agency rulemaking under a novel theory called Major Questions Doctrine, essentially inviting litigation to undermine agencies' authority to make decisions of great political or economic significance.
Theoretically, these rulings should limit agencies' ability to push through major Trump administration policy changes that weren't explicitly authorized by Congress. But legal experts aren't holding their breath either for the White House or right-wing judges to hew closely to those decisions.
'If all judges were to adhere to Loper Bright, they would pay limited heed to Trump administration reinterpretations of statutes,' says Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School. 'But I fear that some judges who share Trump's anti-regulatory views will give his agencies more deference than Loper Bright requires.'
'They're probably going to be doing what they've always done: look at what an agency's interpretation [of federal statute] is, and look at the full evidence of the case,' says Dillen. 'For judges that have an ideological agenda—who are inclined to rule for the Trump administration—they wouldn't have needed the Chevron deference to do that and they won't be constrained by what past administrations have done. They'll have more license to say, 'I'm deciding this.''
As advocacy groups attempt to challenge the White House's attacks on the administrative state, they'll have to choose wisely. Certain challenges threaten to tee up cases that the Supreme Court could use to issue sweeping rulings that overturn long-standing precedent. Dillen also noted the importance of picking 'cases that people can understand,' and selecting fights that 'have political salience, a super robust evidentiary basis and real-life impact on real people so that the story can be understood inside and outside the Court.'
Especially given how stacked the federal judiciary is with right-wing appointees, the courts can only offer so much protection against the Trump administration's lawlessness. Referencing the massive protests at airports against the first Trump administration's 'Muslim ban'—which were complemented by lawsuits—Rahman underlined the importance of pairing litigation with outside pressure.
'We're in a moment where the crisis is so severe that we should use every lever,' he told me. 'We should fight in the courts, but we shouldn't believe in the judiciary as a savior or a silver bullet. The real checks on this stuff are political: They will get away with exactly as much as a deeper politics lets them get away with. Unless and until there is broad public pushback, and more vociferous pushback from elected officials, they'll just keep going.'