I argued yesterday at Lawfare that President Trump’s removal of seventeen inspectors general last Friday was probably lawful. Yes, Trump disregarded a 2022 law that that required him to notify Congress 30 days in advance with a “substantive rationale, including detailed and case-specific reasons” for the removal. But as I explained, this advanced-notice-with-reasons requirement is probably unconstitutional under recent Supreme Court decisions that limit Congress’s ability constrain the president’s removal power. A president does not act unlawfully when he disregards an unconstitutional law.
Trump easily could have followed the notice requirement and achieved the same outcome. The requirement of a “substantive rationale” with reasons is simple to meet and, as I explained yesterday, might be satisfied by the White House explanation that the removals reflected “changing priorities.” The 30-day waiting period is also no big deal, since the 2022 law authorized the president, with conditions, to place an IG on immediate administrative leave for 30 days.* The notice requirement was such small beer that Trump complied with an earlier version of it when he fired IGs in his first term.
Presidents typically invoke Article II as a last resort after having exhausted statutory grounds for achieving policy aims. This is thought to be a prudent course of action to tamp down on tyrannophobia and because courts are much more inclined, all things equal, to uphold presidential action based on statutory authorization rather than Article II power.
Trump, who in unconcerned by tyrannophobia, is operating with a different playbook. Many of Trump’s actions—like the IG firings—are lawful exercises of a president’s massive constitutional and statutory power that are designed to exemplify the robustness of his presidential control. But much of what he is doing either exceeds 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.
This is a strategy, obviously, that is designed to project power and to demonstrate a president who is in charge and fulfilling his campaign promises. It is a strategy that seeks to maximize disruption of the federal government, which is a key policy goal of the Trump administration. And it is a strategy that aims to maximize fear—among the executive branch employees that Trump would like to quit; among those who stay in government but do not support the president’s actions; and among those in the country, and the world, whom Trump wants to intimidate to achieve his ends.
Trump is clearly succeeding in these goals in the early days of his administration. Many policies have changed on a dime. The government is disrupted. Lots of people are scared. And Trump is gloating. “They say we had the greatest first week in presidential history,” he said, yesterday. “Even CNN is saying, ‘This guy is amazing.’”
But ultimate success for many of Trump’s executive actions depends on convincing the Supreme Court that the actions are lawful. And the lawfulness of the actions ultimately rests on the validity of an absolutist conception of unitary executive power that Trump 2.0 embraces and exemplifies.
That conception has four related tenets: (a) the Constitution vests all of the Executive power in the president; (b) all subordinate executive branch officials are removable at will by the president; (c) the president’s Article II duty to “take Care that the Laws be faithfully executed” entails an exclusive presidential power to decide which laws to enforce or not to enforce; and (d) the president can thus direct and control all subordinate executive officials.
The Supreme Court has not yet accepted all of these tenets. Here, simplifying a great deal, is the state of play:
The Court has embraced (a) in many decisions, most recently Trump v. United States, which said: “the Constitution vests the entirety of the executive power in the President,” and “unlike anyone else, the President is a branch of government.”
The court has acknowledged (b), with two important but possibly shaky exceptions: “one for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority.” Many of the people in government Trump wants to remove are probably protected right now by this second exception.
In Trump v. United States the Court for the first time embraced a version of (c). But the scope of its ruling is impossible to discern, and an exclusive power to decide which laws to enforce is in unexamined tension with other decisions.
The Court has tied the president’s power to direct and control all subordinate executive officials, (d), to his removal power and take care duty, and so the extent of that presidential power in the weeds remains uncertain.
There are at least five unitarians on the Supreme Court: Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh. (I am less sure about Justice Barrett.) These Justices have spoken and reasoned in ways that suggest they might accept all four tenets of the pure unitary executive, in theory. The question is whether they will go there in reality, when the reality is a president who doesn’t care about legal limits or about the non-legal norms that have kept the modern behemothic executive in check and thus legitimated its power.
This is one of the most important questions in Trump 2.0. As Bob and I argued last week, “every judicial decision about executive power rests on implicit assumptions about how that power will be used and the credibility and trustworthiness of the administration wielding it.” Trump’s early political and messaging wins on executive orders are signaling a cavalier-about-the-law presidency that will make it hard for Trump to prevail before the unitarians on the Supreme Court for many of his aggressive Article II actions.
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* Some people have asked whether Trump could in fact put an IG on administrative leave, even “with conditions,” since the 2022 law appears to rule that out. The law contains an exception to its restrictions on administrative leave if “the President has made a determination” that the IG poses a “workplace threat” within the meaning of 6 U.S.C. 6329b(b)(2)(A), and that provision (in clause (iv)) includes as one criterion an employee who “jeopardize[s] legitimate Government interests.” Trump could claim that vague provision justifies the administrative leave.