In his first term, President Trump seemed to relish ripping through the norms and standards of self-restraint that his predecessors had respected. Three weeks into his second term, hand-wringing about norms seems quaint.
Other presidents have occasionally ignored or claimed a right to bypass particular statutes. But Mr. Trump has opened the throttle on defying legal limits.
“We are well past euphemism about ‘pushing the limits,’ ‘stretching the envelope’ and the like,” said Peter M. Shane, who is a legal scholar in residence at New York University and the author of a casebook on separation-of-powers law. The array of legal constraints Mr. Trump has violated, Mr. Shane added, amounts to “programmatic sabotage and rampant lawlessness.”
Mr. Trump has effectively nullified laws, such as by ordering the Justice Department to refrain from enforcing a ban on the wildly popular app TikTok and by blocking migrants from invoking a statute allowing them to request asylum. He moved to effectively shutter a federal agency Congress created and tried to freeze congressionally approved spending, including most foreign aid. He summarily fired prosecutors, inspectors general and board members of independent agencies in defiance of legal rules against arbitrary removal.
More than two dozen lawsuits have been filed so far challenging moves by the Trump administration, though many overlap: At least nine, for example, concern his bid to change the constitutional understanding that babies born on U.S. soil to undocumented parents are citizens.
Courts have temporarily blocked that edict, along with his blanket freeze on disbursing $3 trillion in domestic grants from money Congress appropriated. And a federal judge has temporarily blocked the transfer of a transgender federal inmate to a male prison, pausing a move in line with one of Mr. Trump’s executive orders.
But those obstacles so far have been rare in Mr. Trump’s blitzkrieg, which has raised the question of whether, in his return to office, he and his advisers feel constrained by the rule of law.
This week, Mr. Trump moved to effectively dismantle the U.S. Agency for International Development and fold its functions into the State Department, making Secretary of State Marco Rubio its acting director. He had already crippled U.S.A.I.D. by imposing a “temporary” freeze on disbursing foreign aid that Congress appropriated, which as time passes is increasingly at odds with the Impoundment Control Act of 1974.
Since the first Congress, it has been the legislative branch — not the president — that decides how to structure the executive branch, creating departments and agencies, giving them functions and providing them with funds to carry out those missions. And Congress has enacted laws that say U.S.A.I.D. is to exist as an “independent establishment,” not as part of any executive department.
No matter. On Monday, Mr. Trump was asked whether he needed an act of Congress to do away with the agency. He dismissed that suggestion and insulted the officials who work there.
“I don’t think so, not when it comes to fraud,” Mr. Trump said. “If there’s fraud — these people are lunatics — and if — if it comes to fraud, you wouldn’t have an act of Congress. And I’m not sure that you would anyway.”
Rumors abound that Mr. Trump is weighing executive actions to at least partly dismantle the Education Department, another component of the government that Congress has mandated exist by law.
Mr. Trump and his appointees have also been firing people in naked defiance of statutes Congress enacted to protect against the arbitrary removal of certain officials, like civil servants or board members at independent agencies.
For example, Mr. Trump shut down three agencies by ousting Democratic members before their terms had ended. That effectively hobbled the agencies, the National Labor Relations Board, the Equal Employment Opportunity Commission and the Privacy and Civil Liberties Oversight Board, because they were left with too few officials to have a quorum to act.
Congress created those agencies to be independent of the White House, and all three have been understood to have forms of protections limiting the president’s ability to remove their leaders without a good cause, like misconduct, although only the labor board statute says that. Regardless, Mr. Trump flouted the limit.
In so doing, the Trump administration appears to be setting up test cases should those officials sue, that would give the Republican-appointed supermajority on the Supreme Court an opportunity to expand on the so-called unitary executive theory. That doctrine, developed by the Reagan administration legal team, holds that the Constitution should be interpreted to prohibit Congress from enacting laws that limit a president’s absolute control of the executive branch.
The Justice Department has fired most of the prosecutors who worked on the cases that led to two indictments of Mr. Trump, along with those who worked on cases against ordinary rioters from the Jan. 6, 2021, Capitol assault. Top career leaders across the F.B.I. have been fired as well, and on Tuesday the bureau turned over a list of the thousands of agents who participated in those investigations, raising fears that they, too, will be purged.
None of those firings have complied with laws aimed at protecting the civil service and its senior career officials from losing their posts without a good cause, a process that includes hearings before the Merit Systems Protection Board.
Peter L. Strauss, a professor emeritus of law at Columbia University who is a critic of the strong version of the unitary executive theory, said the Trump administration had embraced lawlessness.
“President Trump and his friends are ignoring both federal law and the, to me, clear limitation of presidential power in Article II of the Constitution,” he said. “The Constitution did not imagine what we are seeing. All one has to do is to read the whole of Article II to understand that.”
Bulldozing Legal Constraints
It is not clear what lawyers Mr. Trump’s team has consulted for all his intended moves, although the White House press secretary, Karoline Leavitt, said that the office of the White House counsel, David Warrington, approved the blanket spending freeze, which has now been suspended and enjoined by a court.
“White House Counsel’s Office believes that this is within the president’s power to do it, and therefore, he’s doing it,” she said at a news briefing last week.
The White House did not respond to a request for comment.
During the campaign, Mr. Trump’s advisers made clear that they would use aggressively permissive legal gatekeepers in a second term.
And the Trump team has at least partly sidelined the Justice Department’s Office of Legal Counsel, which is supposed to review proposed executive orders and substantive proclamations for form and legality.
During transitions, the normal process is for a career lawyer in that office, walled off from the exiting administration’s political appointees, to vet drafts of directives the president-elect is considering issuing upon taking office. But Mr. Trump’s transition team did not use that mechanism for his slew of early directives, instead vetting drafts with handpicked lawyers from outside.
Nothing suggests this practice of shopping around for outside legal advice has abated; the Office of Legal Counsel’s website lists no Trump political appointee currently filling the role of its acting chief. A person familiar with the matter said there is now one political appointee in the office.
Even before taking office, Mr. Trump challenged the rule of law by declaring he would nullify a statute barring TikTok from operating in the United States unless its Chinese owners sold it. He made the assertion even though the Supreme Court unanimously upheld the law. And in his directive to the Justice Department forbidding enforcement, Mr. Trump ordered that TikTok and its support services be notified “that there has been no violation of the statute” if they defied it.
Even if Mr. Trump’s vow to block charges could be seen as a particularly aggressive example of prosecutorial discretion, presidents have never been understood to have the power to render that breaking a particular law is not a criminal offense.
Since then, Mr. Trump appears to have been basically operating with a philosophy that he will do whatever he wants despite any legal impediments, then fight in court if necessary.
During the campaign, Mr. Trump’s advisers outlined their hope to fundamentally overhaul the structure of the federal government to curb the civil service and expand presidential power. But it was not clear at the time that the incursion would be effectively outsourced to Elon Musk, the billionaire whom Mr. Trump has unleashed upon the executive branch in search of “efficiency.”
Mr. Musk and employees from his various companies have also been rampaging through the federal bureaucracy, including by seizing access to a Treasury Department system that handles federal payments and has sensitive information, like Social Security numbers, whose disclosure is limited by the Privacy Act. Mr. Musk’s team also got into a standoff with employees at U.S.A.I.D. over its demand for access to classified information.
Federal employees at both the Treasury and U.S.A.I.D. who resisted him were placed on administrative leave. Mr. Musk’s team also shut down U.S.A.I.D.’s headquarters overnight, emailing employees not to come in, and its website went dark.
The Trump team has been opaque about exactly what legal status allows Mr. Musk to be exercising executive power, even at Mr. Trump’s behest, but The New York Times reported this week that Mr. Musk has been deemed a “special government employee.”
The administration has not said when he acquired that status, nor whether or to what extent Mr. Trump has waived a criminal conflict-of-interest law that binds even special employees from touching government matters that could affect their personal interests. For Mr. Musk, that category is vast given how heavily his companies rely on federal contracts.
Meekness by Congressional Republicans
There were reasons to believe that Mr. Trump’s second term would be more radical than his first even before the Supreme Court’s Republican-appointed supermajority last summer proclaimed a new constitutional doctrine that current and former presidents are largely immune from prosecution if they use their official powers to commit crimes.
Unlike last time, the advisers who stuck with him worked to ensure there would be no appointees around him inclined to check his impulses.
Mr. Trump also has little reason to fear impeachment, which he has already survived twice. He has tightened his grip on the Republican Party, which controls Congress and so far has put up scant defense of its institutional prerogatives.
No Republican joined Democrats on the Senate Foreign Relations Committee in a letter on Sunday warning Mr. Rubio that “any effort to merge or fold U.S.A.I.D. into the Department of State should be, and by law must be, previewed, discussed, and approved by Congress.”
A Virginia Democrat, Representative Don Beyer, echoed that point on Monday during a news conference outside the aid agency’s headquarters, calling what Mr. Trump and Mr. Musk were doing “illegal.” He added, “Stopping this will require action by the courts and for Republicans to show up and show courage and stand up for our country.”
Nor have congressional Republicans sharply pushed back against Mr. Trump’s summary firing of 17 inspectors general, the independent watchdogs Congress created to hunt for waste, fraud, abuse and illegality in the government. The firings defied a law that required him to give detailed, written justifications to lawmakers 30 days in advance.
For example, Senator Charles E. Grassley, the Iowa Republican who leads the Judiciary Committee and styles himself as a champion of inspectors general, reacted mildly, issuing a statement and a letter to Mr. Trump that noted that the removals had not followed the law and asked for the rationale behind them. He has not demanded that Mr. Trump rescind the firings, nor unleashed tactics — like holding up cabinet nominees — that lawmakers can use as leverage.
In 1952, when the Supreme Court struck down President Harry S. Truman’s attempt to seize steel mills, Justice Robert Jackson observed that Congress has tools to resist presidential arrogation of its power. But in practice, he added, lawmakers may lack the political fortitude to prevent their authority from slipping through their fingers.
“I have no illusion that any decision by this court can keep power in the hands of Congress if it is not wise and timely in meeting its problems,” he wrote. “A crisis that challenges the president equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that ‘The tools belong to the man who can use them.’”
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