The Risks In Trump’s Barrage of Executive Orders
The "shock and awe" orders and associated rhetoric will cost Trump in the court challenges ahead
President Trump yesterday issued dozens of executive orders that in the aggregate fulfill the “shock and awe” prophecy. These orders cover a broad range of Trump campaign commitments: elimination of DEI programs in the federal government; withdrawal from the Paris Agreement on Climate Change; revocation of many dozens of Biden executive orders; delay of the TikTok ban; pardons and commutations for January 6 defendants; immigration enforcement and related issues; border security; national energy; civil service reform; creation of the Department of Government Efficiency (DOGE); limiting birthright citizenship; and much more.
With his inaugural speech and now these orders, Trump has conveyed that he means business and will act quickly, decisively, and with historic determination on his campaign themes and promises. And yet Trump’s version of the “shock and awe” approach to the presidency could be inviting significant trouble for that agenda in the months ahead.
The Aims of the Orders
A new administration’s issuance of a slew of executive orders on its first day is not unusual. The orders are both substantive and performative in nature. Their objectives include sparking momentum for the new government’s policies and meeting the high expectations of the “base.” New administrations also seek to get a jump on a central challenge that each president confronts: accomplishing as much as possible in the first eighteen months before midterm elections and the onset of a reelection campaign or, in Trump’s case, a “lame duck” presidency, limit the opportunities for effective action.
But how this opening act is conceived and executed matters to whether short-term policy and messaging success can be translated into policy success over the long run. If misjudged and misplayed, the display of executive vigor in executive orders can enmesh an administration in legal and political controversy. Trump’s issuance of an unprecedented number of first-day executive orders on major issues, with legal justifications ranging from solid to relatively solid to highly dubious, dramatically heightens this risk.
Legal Justifications and Risks
The orders, as is typical, do not explain their legal basis in any detail. And we have not read, much less studied, all of the orders. That said, the ones that raise obvious legal problems include the DOGE order (because it is unclear whether it complies with the Federal Advisory Committee Act); the birthright citizenship order (because of its reading of the 14th Amendment); and the Paris agreement withdrawal order (because of its apparent failure to comply with the agreement’s one-year notice provision).
At or near the top of the list of highly dubious orders—and an order particularly likely to attract the Supreme Court’s attention—is the one delaying the implementation of the TikTok ban. Congress wrote the ban in clear terms, and the Supreme Court upheld its validity. The law contains one clear workaround for “qualified divestitures,” but ByteDance is not now interested and Trump did not invoke that. Rather, in his order delaying the ban, Trump stated that because the law “interferes with [his] ability to assess the national security and foreign policy implications of the Act’s prohibitions before they take effect,” he was ordering his Attorney General not to enforce it. This is a preposterous rationale. President Biden and large majorities in Congress assessed the national security implications and implemented the ban, which was in full effect before Trump became president. The Constitution confers no presidential national security discretion to decline to enforce validly enacted laws.
Massive litigation in response to the Trump orders is a sure thing—indeed, it has already started. The larger the number of orders that rely on the most robust theories of executive power, the greater the likelihood the administration will lose in court—including on major issues. The more the administration loses, especially on initiatives profiled on the first day as central to the president’s program, the more damaging these failures will be to the perception of its overall competence.
These legal risks are heightened because executive orders were assembled during the transition, in a hurry. Monday’s orders were presumably reviewed by the senior lawyers preparing to assume roles in the new government (and perhaps others in the Trump transition who may not take official roles). But we do not know what legal advice was given, whose legal views were most influential, or even the weight that legal considerations carried. Those considerations will prove to have mattered, not least in serving the Trump Administration’s long-term interest in establishing and maintaining credibility in the courts on issues of executive authority.
Rhetoric Matters
The rhetoric in which the president and his subordinates explain and defend the forward-leaning orders and other executive actions will also matter. In the past, Trump has bragged about the enormity of the President’s “total” Article II powers that allow him to do, in his words, “whatever I want,” and about his desire and intention to deploy these powers aggressively. In his inaugural address Trump pledged “to meet every crisis with dignity and power and strength,” to exercise his “full and immense power” in deporting foreign criminal networks, and to defend the country “at a level that nobody has ever seen before.” He added that his cabinet would use “the vast powers at their disposal” to defeat inflation.
This rhetoric may be inspiring to supporters, but it serves no useful purpose in advancing the president’s agenda. And, we believe, it is destined to do harm. “Open chest-thumping about the importance of maintaining and expanding executive power,” as Jack put it in The Terror Presidency, is antithetical to the successful exercise of that power. Trump and his administration’s legal rhetorical swagger about the exercise of presidential power as a seeming matter of principle is unwise and will heighten the perception of overreach that inheres in the “shock and awe” orders.
The federal judiciary already appreciates that Trump has an expansive of view of executive power and makes no bones about it. But the rhetoric will inform how the courts, and especially the Supreme Court, assess the legally controversial orders that Trump announced on Monday. It will have this effect because 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.
Conclusion
The Trump 1.0 Administration had “the worst record at the Supreme Court of any modern president.” The Trump 2.0 administration is charging ahead with a “shock and awe” executive order program enhanced by public pronouncements of desire to exercise executive power in the extreme. Far from absorbing the experiences of Trump 1.0, Trump 2.0 is doubling down. We predict it will not end close to as well as the new president imagines and hopes.