Walter Olson
In its early executive orders and actions, the Trump administration has regularly taken steps that go beyond what standard legal opinion would have to be its authority. This weekend, according to news reports, the administration indicated that it is dissolving the US Agency for International Development, possibly folding some of its functions into the State Department, even though a 1998 law establishes USAID as a stand-alone entity that cannot be thus conjured away.
Jack Goldsmith, former head of the Department of Justice’s Office of Legal Counsel (OLC), compiled a list last week with examples of Trump’s actions that “either exceed the Supreme Court’s current conceptions of the limits of presidential power or at least are very aggressive and contested assertions of presidential power.”
For example: The TikTok ban delay reflects a controversial and not-obviously-lawful conception of presidential enforcement discretion. The withdrawal from the Paris agreement is contrary to prior executive branch views of presidential agreement-termination authority. Yesterday’s freeze of nearly all grants and federal loans, though nominally limited “to the extent permissible under applicable law,” foreshadows the much-telegraphed and almost-certainly-unconstitutional Trumpian Article II impoundment theory. Trump’s gambit to fire career civil servants rests on a conception of Article II that goes beyond the Supreme Court’s already-generous removal precedents. There are other examples of Article II overreach. And relatedly, several of Trump’s actions violate other provisions of the Constitution, such as the birthright citizenship order.
More could be added, including wider new bids to fire career civil servants as part of broad purges at the Department of Justice and FBI. Two federal judges entered restraining orders against the spending freeze order, which has been withdrawn.
What gives? Why is this happening, and where are things headed? In an illuminating new essay, Goldsmith and his partner at the site Executive Functions, former White House Counsel Bob Bauer, offer an informed guess. They look at three alternative explanations that might seem plausible—that the violations of existing precedent are inadvertent results of incompetence, that they are designed to set up good faith test cases with which to persuade judges to change the law, and “a third possibility: the administration doesn’t care about compliance with current law, might not care about what the Supreme Court thinks either, and is seeking to effectuate radical constitutional change.” The most likely explanation, they argue, is the last of these.
A preliminary question one might ask is: who was vetting these orders? Since the John F. Kennedy administration, it has been standard practice for the Justice Department’s Office of Legal Counsel to take the lead on legal review. But there are multiple reasons to think the OLC has been cut out of that role this time—one being that it is still vague who staffs it, another being that the White House spokeswoman referred to an order as having been vetted by White House counsel (as distinct from DoJ). Moreover, the executive orders frequently reverse positions previously taken by OLC, something that is usually rare and occasions work of extra intensiveness:
These examples [in Goldsmith’s list above] are notable because one (birthright citizenship) defies an OLC opinion, another (constitutional impoundment) is contrary to another OLC opinion, a third (the Paris agreement withdrawal) reflects a view that OLC has found problematic (see pp. 8–9), and the others are in tension with or contrary to extant Supreme Court jurisprudence. And there are many other examples of EOs contrary to or in tension with governing law. It doesn’t appear as if these orders received OLC approval for form and legality. And if they did, the pattern raises questions about how OLC will function in this administration. OLC normally adheres to Supreme Court precedent, and though it sometimes reverses itself, it typically explains reversals in published opinions.
One reason the organization charts are important is that the essay says Russell Vought, nominated to return as director of the Office of Management and Budget, has expressed frustration with the role the Department of Justice played in the first Trump administration (OMB is centrally involved in the preparation of proposed executive orders). The discussion of Vought’s views is worth close attention:
In May 2023, Vought complained at a talk at the pro-Trump think tank, the Center for Renewing America, that Trump’s policies in the first administration were thwarted because “the lawyers come in and say it’s not legal, you can’t do that, that would overturn this precedent, there’s a state law against that.”
Vought added that legal objections to presidential policies are where “so much of things break down in our country.” He provided a specific example: “a future president says, ‘What legal authorities do I need to shut down the riots,’ we want to be able to shut down the riots and not have the legal community … to come in and say ‘that’s an inappropriate use of what you’re trying to do.’” Vought added: “I don’t want President Trump having to lose a moment of time having fights in the Oval Office about whether something is legal .…”
The explanation that best accounts for “the apparent indifference to legal compliance in so many of the Executive orders,” write Bauer and Goldsmith, is that the intent is “bombarding the Court with a wave of legal challenges about the proper scope of Article II (among many legal issues) with the aim of provoking a confrontation over the legitimacy of the existing legal order, at least with regard to Article II, and perhaps more broadly. And the administration might be planning to dare the Court to say ‘no’ with threats of noncompliance.”
There remains what one might call strategic ambiguity about whether they would follow through on hints of noncompliance. But the Supreme Court is averse to confrontations, especially when its own standing might be at risk, and so might alter its legal holdings to be more accommodating to executive branch ambitions.
The whole piece, which is well worth reading in its entirety, is here.