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New York Times
30-04-2025
- Politics
- New York Times
Trump's Maximalist Assertion of Presidential Power Tests the Rule of Law
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.'
New York Times
04-04-2025
- Politics
- New York Times
Trump Sidelines Justice Dept. Legal Office, Eroding Another Check on His Power
The Justice Department's Office of Legal Counsel has traditionally been a powerful guardrail in American government. It has issued interpretations of the law that bind agencies across the executive branch, decided which proposed policies were legally permissible or out of bounds and approved draft executive orders before they went to presidents to be signed. But in President Trump's second term so far, the office has largely been sidelined. As Mr. Trump issues policy after policy pushing legal limits and asserting an expansive view of his power, the White House has undercut its role as a gatekeeper — delaying giving it senior leadership and weakening its ability to impose quality control over executive orders. Its diminished voice is shifting the balance of legal power in the executive branch toward the White House, speeding up Mr. Trump's ability to act but creating mounting difficulties for the Justice Department lawyers who must defend the government in court. 'The Trump administration has cut out the traditional check the Justice Department has played,' said Jack Goldsmith, a Harvard law professor who led the office under the George W. Bush administration. 'O.L.C. being cut out is a piece of a larger strategy designed to ensure that the president can do whatever he wants, without any internal executive branch legal constraints on his will.' Two and a half months into his administration, Mr. Trump has neither submitted a nominee to be the office's Senate-confirmed leader nor named an acting assistant attorney general. This week, after being asked to comment for this article, the department announced that he intended to nominate T. Elliot Gaiser, 35, the Ohio solicitor general, for the position. Breaking with tradition, the Trump transition team did not have the dozens of executive orders he signed in his first days in office vetted by the office, according to current and former officials. Many have contributed to what is now more than four dozen restraining orders and injunctions by courts blocking administration actions. And while the administration has since started allowing the office to review draft executive orders, that consultation is far more limited than in the past, according to people familiar with the process. Traditionally, the office traded versions back and forth until it was satisfied with a draft's form and legality, then issued a memo approving the final text. Now, they said, it typically has an opportunity to see a version and provide comments for the White House to consider, but it does not remain involved to the end and decide that an order is ready for the president. In another sign of O.L.C.'s reduced clout, Mr. Trump has taken a series of actions and made claims that contradict or raise tensions with the office's opinions. The topics involve birthright citizenship, blocking spending authorized by Congress, migrants' right to seek asylum, Supreme Court approval for the existence of independent agencies, a president's use of an autopen to sign documents and White House jurisdiction over the Smithsonian Institution. Critics of executive overreach have long criticized the Office of Legal Counsel as too permissive. But Professor Goldsmith said it had nevertheless served as an important internal check. He cited its culture of serious legal analysis and, in contrast to lawyers based in the White House, its literal distance from the political and policymaking vortex of the Oval Office. The White House press office did not respond to a request for comment. The Justice Department provided a statement from Emil Bove III, a former criminal defense lawyer for Mr. Trump who is now a top official at the department. 'The Office of Legal Counsel plays a crucial role in the D.O.J.'s day-to-day functions, engages with the White House and other administration partners on a regular basis and routinely reviews President Trump's executive orders,' he said. 'Any suggestion to the contrary is false.' Most of the office consists of career lawyers who stayed on after its previous leader stepped down at the end of the Biden administration. The Trump team has been slow to fill that vacuum. On Jan. 27, it installed Lanora C. Pettit, a 2010 graduate of the University of Virginia law school who had worked for the Texas solicitor general, as a politically appointed deputy. The next month, it added a second deputy, M. Scott Proctor, a 2017 graduate of Harvard Law and a former clerk to Justice Clarence Thomas. Neither was given the higher-ranking title of principal deputy, but Ms. Pettit is the office's supervising official in the absence of anyone more senior. After Ms. Pettit's arrival, the White House began letting O.L.C. review draft executive orders, the department said, while emphasizing that the office was not legally required to issue approval memos and insisting that the absence of those memos did not mean drafts were not being reviewed. But the people familiar with the process, who spoke on the condition of anonymity to discuss a sensitive internal process, noted that 'reviewed' is very different from 'approved.' Several Office of Legal Counsel veterans from both parties expressed doubts that it could have approved several recent directives — like vituperative orders seeking to damage law firms that have employed or represented people Mr. Trump dislikes. Judges have partly blocked three of those. When past administrations have taken legally controversial actions, the White House has sometimes made public O.L.C. memos that approved the steps. Such moves aim to explain the legal rationales and show that they were not concocted after the fact in an attempt to justify a decision that was actually based on a president's mere whim and raw will to exercise power. But the Office of Legal Counsel has been strikingly missing in public debates over aggressive administration efforts to revoke the visas of foreign students; fire officials in defiance of job protections against arbitrary removal; refuse to spend funds appropriated by Congress; dismantle agencies; and deport people without due process, among others. To date, the administration has published one memo from the current Office of Legal Counsel, an opinion by Ms. Pettit in mid-March saying that Mr. Trump could designate acting members of two foreign-assistance foundations after he fired their boards. In the past, the office has also performed another quality-control function: Checking factual statements in draft orders and insisting upon solid evidence supporting any material claims before approving them, veterans of the office say. Last month, Mr. Trump issued an order invoking the Alien Enemies Act to summarily deport accused members of a Venezuelan gang. That law requires a link to a foreign state, and Mr. Trump said Venezuela's government controls the gang. But U.S. intelligence agencies concluded in February that Venezuela's government does not, in fact, control the gang. Martin Lederman, a Georgetown law professor who worked at the Office of Legal Counsel during Democratic administrations, said Mr. Trump's directives do not appear to have gone through its approval process. 'When the system is working as it should, any fact or legal justification upon which an order depends is flyspecked by the office, and the president does not sign it until O.L.C. is satisfied that it is well grounded,' he said. 'It's unimaginable that O.L.C. would have approved many of these executive orders for form and legality. It's obvious they didn't.' The office traces its origins to the Judiciary Act of 1789, which empowers attorneys general to render legal opinions to the president and department heads, and a 1962 directive from President John F. Kennedy, which requires them to review draft executive orders. In the modern era, attorneys general have delegated those functions to the Office of Legal Counsel. On paper, attorneys general can overrule its conclusions and presidents are not bound to follow its advice. In practice, overriding or disregarding the office's judgments is rare and has been considered politically and legally risky. The office gained notoriety after the Sept. 11, 2001, attacks when it issued secret memos blessing policies that violated torture and surveillance laws. In 2003, Professor Goldsmith, then the new chief of the Office of Legal Counsel, revoked them. The White House decided to keep a surveillance program going regardless, but backed down after top law enforcement officials threatened to resign. In 2010, the office issued a 'best practices' memo declaring that its ethos must be to serve the rule of law, not to be a rubber stamp for the White House. To be sure, Mr. Trump took contentious actions in his first term with the office's approval, like the killing of a top Iranian official and withholding Mr. Trump's tax returns from Congress. But the head of the office that term, Steven Engel, played a central role among a team of lawyers who did not always sign off on what Mr. Trump or top aides like Stephen Miller, now the top domestic policy official in the White House, wanted to do. For example, the White House clashed with the Homeland Security Department's top lawyer, John Mitnick, over legal risks from proposals like separating migrant children from parents and transporting migrants to so-called sanctuary cities. He was fired in 2019 and replaced by Chad Mizelle, an ally of Mr. Miller who is now Attorney General Pam Bondi's chief of staff. And Mr. Trump announced in 2018 that he would issue an executive order ending birthright citizenship for babies born to undocumented parents — but never did. An Office of Legal Counsel opinion from 1995, which remained in place under Mr. Engel, says that would be unconstitutional. But Mr. Trump issued such an order upon returning to office. While Mr. Trump was out of power, his allies decided that lawyers, even conservative political appointees, had too often raised legal roadblocks. They made plans to screen out such lawyers in any second term in favor of hiring more permissive, MAGA-style loyalists. Mr. Miller, who is not a lawyer, ran a legal foundation that recruited lawyers loyal to Mr. Trump's worldview and helped staff the administration. Those include Reed Rubinstein, Mr. Trump's nominee to be the State Department's top lawyer, and Gene P. Hamilton, who works for the White House counsel and former Trump campaign lawyer David Warrington. In an executive order instructing independent agencies to submit to White House supervision in February, Mr. Trump declared, 'The president and the attorney general's opinions on questions of law are controlling on all employees in the conduct of their official duties.' That sounded like a standard description of the Office of Legal Counsel, but the office went unmentioned.
Boston Globe
11-03-2025
- Politics
- Boston Globe
Supreme Court seems intent on taking small steps in dealing with challenges to Trump's agenda
Instead, they may stand for an important, but less showy, commitment to regular order from the top of a judicial system that has emerged as a key check on Trump's power with the Republican-controlled Congress largely supportive or silent. Get Starting Point A guide through the most important stories of the morning, delivered Monday through Friday. Enter Email Sign Up Jack Goldsmith, a Justice Department official during President George W. Bush's administration, said there may be benefits for the court in taking small steps and delaying, which 'brought the court advantage by achieving emergency outcomes it wanted without having to tip its hand prematurely on the merits of the cases.' Advertisement Trump's unparalleled flex of presidential power seems destined for several dates at a Supreme Court that he helped shape with three appointees during his first term. But even a conservative majority that has a robust view of presidential power and granted him broad immunity from criminal prosecution might balk at some of what the president wants to do. His push to end birthright citizenship for the children of parents who are in the U.S. illegally, for instance, would discard more than 100 years of practice and a relatively settled understanding of the 14th Amendment's guarantee of citizenship to 'all persons born or naturalized in the United States.' Challenges to the citizenship order are among more than 100 lawsuits that have been filed, and lower-court judges have hit pause on the administration's plans more than 30 times. The Supreme Court's early forays have largely not been about the substance of what the president wants to do but about the procedures used by federal judges who have the first crack at evaluating the lawfulness of the administration's actions. Advertisement Trump allies, most notably his billionaire adviser Elon Musk, have railed at judges slowing his agenda, threatening impeachment and launching personal attacks. The Federal Judges Association, the largest such organization, issued a rare public statement decrying 'irresponsible rhetoric shrouded in disinformation' that could undermine public confidence in the judiciary. Though Trump has said he would obey the courts, Vice President JD Vance, Musk and others have suggested the administration could defy a court order, which would spark a constitutional crisis. Trump has vowed to appeal decisions he doesn't like, something his administration has done quickly in several cases even as some plaintiffs question whether the government is fully following judges' orders. 'It seemed to me that they're playing pretty fast and loose,' said Jeffrey Schmitt, a professor at the University of Dayton School of Law. 'They don't want to be seen as blatantly disrespecting the courts and refusing to follow their orders. They also don't want to change their behavior.' The Supreme Court, meanwhile, is getting drawn into the fray in fits and starts. That could change soon, as more lawsuits reach a stage at which they can be appealed to the high court. 'It strikes me that the court is trying to signal that the normal processes should take place,' said Kent Greenfield, a Boston College law professor who is the main author of a letter signed by roughly 1,000 scholars contending that the nation already is in a constitutional crisis as a result of Trump's actions. A progressive group, Court Accountability, said the court's more recent order, in the foreign aid freeze case, may have been reported as a setback for the administration. Advertisement 'But a closer look at the majority's short order reveals that the Chief Justice actually gave Trump everything he wanted,' the group wrote on its blog, explaining that additional delays only make it harder for people and groups hurt by the freeze to recover. Josh Blackman, a professor at the South Texas College of Law, wrote on The Volokh Conspiracy blog that the high court has ducked urgent constitutional issues it should have decided about the extent of the president's power. Instead, he wrote, district judges 'are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.' But while they sparked online outrage in some quarters of the president's base, the events of the past few days could be seen as validation for the justices' cautious approach. On Feb. 21, a Supreme Court order temporarily kept Hampton Dellinger, the head of the Office of Special Counsel, in his job despite efforts by Trump to fire him. In fact, the justices didn't rule either way on the administration's request to throw out an order in Dellinger's favor. The high court held the matter 'in abeyance,' pending further proceedings in the lower court. On Thursday, Dellinger ended his legal fight after a federal appeals court ruled against him — but not before he stalled the firing of 5,000 federal workers slated for layoffs. The Supreme Court finally acted on the administration's request, hours after Dellinger dropped out, dismissing it as moot. The scale of the federal layoffs that the new administration wants to carry out could also put federal employment law in front of the high court. While experts say the justices appear inclined to allow the president more power to hire and fire agency heads, the outlook is less clear for civil service protections for other federal workers. Advertisement In the foreign aid freeze case, U.S. District Judge Amir Ali narrowed his payment order to require the administration to immediately pay only those organizations that had originally filed the lawsuit. But with nearly a dozen lawsuits filed over moves to freeze federal funding abroad and at home so they can align spending with Trump's agenda, the fight over 'power of the purse' seems bound to return to the Supreme Court. The justices have played a limited role so far, but Trump's presidency is less than two months old.
Washington Post
27-02-2025
- Politics
- Washington Post
Don't count on the courts to save us from Trump's orders
In her Feb. 9 op-ed, 'Let the lawsuits begin,' Ruth Marcus wrote that her glass is less full than Harvard Law School professor Jack Goldsmith's glass. I am neither a lawyer nor a professor, but my glass is even closer to empty than Marcus's. I do not feel secure that the courts, especially the Supreme Court, will uphold the limits of executive power and enforce the system of checks and balances as set out in the Constitution.
