Power Over Principle
The Trump Administration's Pursuit of Unfettered Executive Authority
The President believes in unchecked executive power. While virtually all chief executives in our history sought more power, few have overtly rejected the balance of powers among branches of government. Even fewer have rejected democracy itself. Mr. Trump takes his quest for power to the point of failing to pursue the easy policy wins that would achieve his goals. His actions in removing board members in independent agencies, improperly canceling contracts, firing federal workers, directing agencies by fiat, and refusing to follow court orders all show that increasing his own power is his primary goal.
Humphrey’s Executor and Tenure for Independent Agency Board Members. Most federal agencies are executive in nature; they have secretaries or directors appointed by, and answerable to, the President. However, Congress has created a number of independent agencies headed by committees to enforce certain laws or regulate certain areas. These include the Federal Reserve for fiscal policy; the Federal Labor Relations Board for private sector labor relations; the Merit Systems Protection Board for federal employee protections; and the Federal Trade Commission for antitrust and other trade issues. Usually, the President nominates the directors in these agencies, but their tenures are not connected to the President’s.
In the early 1930’s, President Franklin Roosevelt tried to fire a sitting FTC Commissioner, William Humphrey, because he worried that Humphrey would block his New Deal reforms. Although Commissioner Humphrey died during the litigation, the Supreme Court eventually upheld his right to maintain his position, a right termed Humphrey’s Executor.
The Supreme Court adjusted this rule somewhat in 2020, holding that the director of the Consumer Financial Protection Bureau held a sufficiently executive role that he should serve at the pleasure of the President, rather than only being terminable by the President for cause. However, Humphrey’s Executor still prohibits the firing of independent agency directors. Despite this, the President has attempted to fire directors at the FLRB, MSPB, FTC, and other agencies. While most of the directors have prevailed in the lower courts, the Administration will appeal these in an attempt to get the Supreme Court to reverse precedent and make even agency directors subject to firing without cause. Indeed, it is not clear that the directors he seeks to remove even disagree with him on the issues before their agencies. The issue is power, not policy.
Refusing to Faithfully Execute the Law. As we all (hopefully) learned in school, Congress has the power to implement the Constitution through laws and to fund the government, while the President has the duty to faithfully execute those laws. Since the passage of the Impoundment Control Act of 1974, upheld by the Supreme Court in 1975, the President must ask Congress to spend less than the full budgeted amount for an agency in a given year. The President retains some degree of authority on how to spend the money, depending on the terms of the appropriation, but he must spend the money, usually through contracts and the employment of federal workers.
For good cause and after due process, the President may terminate any particular contract or federal employee. However, no previous President has attempted so overtly to refuse to do his job in executing the laws (including the budget) by deliberately cancelling all of an agency’s contracts and firing all of its employees, much less by simply disestablishing the entire Congressionally-mandated agency by executive order. Again, this President has largely lost in the courts, mostly because he has failed to provide any cause or due process for his actions. Indeed, many of these decisions have pointed out that he has the authority to conduct reductions in force or to restructure contracts through a deliberate process. However, the lack of process and deliberation appears to be the entire point of the action. The President wants the Supreme Court to overturn the Impoundment Control Act and give him the authority he believes he needs to restructure the federal government without Congress.
Because I Say So - Ignoring the Administrative Procedures Act. While Congress writes the laws, the agencies interpret and enforce them through regulations. These regulations fall under the Administrative Procedure Act (APA). The APA provides a simple process for changing regulations - (1) the agency posts a notice with its reasons for establishing, disestablishing, or changing a regulation; (2) interested parties have 60 days to submit a comment on the proposed action; (3) then the agency may take the action, provided that it answers the comments and acts in a rational way.
The President may issue executive orders to direct his administration in the development and enforcement of these regulations. However, in most cases, the agency must follow the APA to implement these changes. For instance, if the Administration wants to reinterpret the 1964 Civil Rights Act Title IX provisions to exclude protecting transgender student-athletes from participating in certain sports or other activities, he could order the Department of Education (ED) to do so. In the usual course of business, ED would review the order, review Title IX and the court decisions interpreting it, and then write and publish a regulation adhering as closely as possible to the President’s order.
This is certainly not what’s happening now. Rather than following the law to establish or change the interpretation of Title IX through regulation, the President is attempting to force universities to adhere to his view of the law by unlawfully withholding federal support until they do as he asks. Again, the issue isn’t really about the stated policy goal, but about the President’s legal authority to act without following the laws Congress passed.
Oopsie - Too Late. Refusing to Follow Court Orders. Since 1803, the federal courts have had the final authority in interpreting the law. Impacted parties may file in federal court to prohibit a government action they believe is unlawful. If the court agrees that the parties are likely to prevail and will suffer an irreparable injury, the court will issue a preliminary injunction prohibiting the government from acting until the court can fully hear the case. After hearing the case, the court may issue a permanent injunction. When parties disagree with the court’s action, they may appeal it up to higher courts, including the US Supreme Court. However, until a higher court overturns an injunction, failing to follow it can result in a contempt of court finding, including criminal liability. There has been much discussion over whether a single judge should have the authority to issue certain large-scale injunctions, instead of an appeals court or panel of judges, but for now all federal district court judges have the authority to do so.
Recently, a district court judge issued a preliminary injunction prohibiting the Trump Administration from deporting certain non-citizens from the country without due process under the 1798 Alien Enemies Act. When it appeared that the Administration continued two flights despite the court’s order that they turn around and return to the US, the court inquired as to the circumstances - and the Administration refused to answer. Indeed, the President of El Salvador (where the planes landed) posted, “Oopsie…too late” in response to the order, indicating knowledge that the flights were conducted contrary to the court’s order.
This presents the most direct threat to the rule of law yet. Should the President refuse to follow court orders, he will essentially lack any legal restraint from simply governing by order, rather than law. While many of us do differ in the degree of power we believe the President should have, I hope we all agree that the President should follow his oath to support and defend the Constitution.
Power Over Principle. From removing agency directors, to firing civil servants without cause, to rejecting the limits imposed by Congress and the courts, the President shows that he has one goal - to increase his power. In most cases, the President could accomplish his policy goals without resorting to violating the law. After all, his party holds both Chambers of Congress and a majority on the Supreme Court. But this President cares about power, not policy. And so, while we differ in our motivations and our policy preferences, I hope we may all agree on this one principle - that no one is above the law.
Three Codas
Congressional Dereliction. The President implicitly justifies his actions in response to Congress’s unwillingness to tackle the significant problems facing our country. Reining in the federal deficit is Congress’s job, not the President’s. Congress is unwilling to do this because it will likely involve both program cuts and increased taxes - both extremely unpopular with voters, however necessary. Similarly, Congress desperately needs to overhaul our immigration system to address border security, enforcement, our need for workforce to support business, and the status of long term residents without documentation. Finally, administrative agencies have had to extend their policymaking so far largely because Congress is unwilling to take a more active role in that arena. Put simply, Congress isn’t doing its job. perhaps explaining why it remains consistently unpopular with the public.
However, this does not justify executive overreach. If the President wants a balanced budget, he would be well within his rights to simply tell Congress he will veto any budget that isn’t balanced. He could similarly refuse to sign any other legislation until Congress addresses immigration or any of the other important issues Congress has neglected over the years. The President chooses not to do these things because they would not add to his power.
Picking Our Battles. President Trump isn’t dumb. He often picks the cases he intervenes in carefully, selecting unsympathetic victims to persecute. As a legal matter, especially as someone who served as a public defender, I appreciate that we need to defend even unpopular victims. However, as a political matter, we need to be careful about which cases we focus on in the public eye. While even people who verbally support terrorist organizations deserve free speech and due process, it is often best to make sure we fund the ACLU to do the defending and focus on more sympathetic victims for our public advocacy.
Keeping the Eye on the Prize. We should also recall that we lost the 2024 general election largely because moderates felt the President better represented their interest in pocketbook and kitchen table issues. I hope the Democratic leadership focuses on just how thoroughly the Administration has walked away from those commitments. The Democratic Party has always been the party of the people, but we’re often terrible at telling that story. Markets are down, unemployment is up, and inflation is only staying down because consumer confidence is so low that people are starting to sit on their money rather than buy. All of these will get worse in the near future and they collectively represent a betrayal of what the President sold the voters in his campaign.
How You Can Help
Many of you expressed your appreciation for my last column on how to resist and inspire others in these times. I’m going to start posting one concrete activity you can do to help with each post. This time, I encourage you to phone bank to support Susan Crawford in the Wisconsin Supreme Court race. Follow the link to help. Elon Musk is trying to buy the election by funding Crawford’s MAGA opponent, who would like to reduce women’s reproductive rights and restore Wisconsin’s Republican gerrymander. Mr. Musk’s support also comes as Tesla has filed a suit in Wisconsin’s courts that will likely eventually come before the Wisconsin Supreme Court. Please support Susan Crawford in her fight against corruption and to preserve reproductive rights in this battleground state.
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