To understand how the presidency works—how the president organizes the executive branch, what he can accomplish with executive power, when he can act alone under Article II of the Constitution, when he needs Congress and the courts on board, and what he is forbidden to do—one must understand the law and norms that govern it. These are the issues Bob Bauer and I will be covering on Executive Functions.
The incoming Trump administration has big plans to disrupt and reconceive the federal government. What follows is an overview of some of the meatier topics one can anticipate during the first year of the second Trump presidency. This overview builds on my “quick list of important issues [during Trump 2.0] where executive power is likely to be pushed hard, rethought, resisted, and/or, when possible, litigated.”
Staffing the Administration
A ruckus has already transpired over Trump’s November 10 tweet that “the Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner.” Senate confirmation for 1200 or so senior executive branch officials is a vital congressional check on executive branch power. The Recess Appointments Clause in Article II allows the president as a backstop, “during the Recess of the Senate,” to immediately fill an executive branch vacancy that normally requires Senate consent. But as Ed Whelan has explained, recess appointments at the outset of an administration are a bad idea, and the means Trump seems to be contemplating for making recess appointments are legally dubious. I don’t think Trump 2.0 will pursue this route in a robust way.
But there is another way for Trump to get loyalists into top executive branch offices on January 20 without Senate confirmation: the Federal Vacancies Reform Act (FVRA). The core FVRA provision, 5 U.S.C. § 3345, allows a president to fill vacant offices otherwise requiring Senate consent with officials who are either (i) “the first assistant to the office,” (ii) any Senate-confirmed officer from anywhere in the administration, or (iii) an employee in the department or agency paid at a GS-15 level or higher who has been in the department or agency for at least 90 days in the last year. These three criteria give the president lots of flexibility to fill top administration spots for a very long time without Senate confirmation. And FVRA is a hotbed of complexity and loopholes that enables other appointments machinations. As Bob and I explained in After Trump, past presidents used FVRA aggressively and imaginatively to skirt the Senate process, as did Trump in his first term. Expect much more of this in Trump 2.0.
Deregulation
Trump aims to reverse many Biden-era policies in areas ranging from immigration to the environment to transportation policy to artificial intelligence and more. In some contexts, the president can direct new policies at the flick of an executive order. But in many contexts, to change policy direction the executive branch must negotiate the complexities of administrative law. The Trump administration did a terrible job at this during its first term. Poor lawyering at the policy-implementation stage led the Trump team to fail, for example, in its efforts to reverse the Obama-era DACA immigration relief program. We will see if Trump 2.0 lawyering better serves Trump’s goals.
DOGE
The Department of Government Efficiency (DOGE), to be led by Elon Musk and Vivek Ramaswamy, is one tool that the Trump administration will use to deregulate. Trump says DOGE “will pave the way for my Administration to dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.” According to Musk and Ramaswamy, DOGE will work closely with the White House Office of Management and Budget. The two men will “serve as outside volunteers, not federal officials or employees,” and will “advise DOGE at every step to pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.” This will raise a hornet’s nest of legal issues.
One is the legal status of DOGE itself. It appears it will be a group of non-government officials who lack policy-implementing power and instead will advise the White House on various deregulatory steps. If so, DOGE would likely be governed by the Federal Advisory Committee Act (FACA). FACA defines an “advisory committee” subject to its rules as “any” committee, task force, “or other similar group” which (among other things) is “established or utilized by the President.” FACA, if it applies, will slow DOGE down, since it has rules about transparency, record keeping, and conflicts of interest. The incoming Trump administration is surely looking for ways to avoid FACA compliance—perhaps by “taking on an informal structure and rendering advice as individuals rather than as a group,” or by going all in on a 1974 Antonin Scalia Office of Legal Counsel (OLC) opinion that elements of FACA are unconstitutional. DOGE’s operation will likely be litigated.
Loper Bright and Major Questions
Musk and Ramaswamy claim that the Supreme Court’s recent decisions in Loper Bright (which took away one strand of deference to administrative agencies in some contexts), and in West Virginia v. EPA (which announced a major questions doctrine (MQD) that requires clear congressional authorization for some novel regulatory initiatives), will help DOGE achieve its goals.
I’m not so sure. The MQD might prevent a Trump 2.0 agency from taking a novel deregulatory move due to lack of clear authorization. If a Trump 2.0 agency thinks a Biden-era regulation runs afoul of MQD, it still must comply with administrative law intricacies before changing the Biden rule. And the lack of deference to agencies in Loper Bright could make it harder, not easier, for the Trump administration to change regulatory directions. Cass Sunstein thinks “[t]here is every reason to expect an uptick in the number of invalidations” of Trump deregulatory efforts due to Loper Bright.
Impoundment
Trump has claimed a “Constitutional power to stop unnecessary spending through what is known as Impoundment.” Presidents historically had discretion over spending in some circumstances, such as when Congress expressly or impliedly so provided in an appropriation. The 1974 Impoundment Control Act sought to rein in Richard Nixon’s impoundment practices and placed sharp limits on presidential discretion to impound. Trump’s idea seems to be that Article II empowers him not to spend money whenever he likes, on policy grounds, even when the 1974 Act demands the spending. Such Article II impoundment would be a deregulatory super-power if valid—but I doubt it is. William Rehnquist basically got it right in his 1969 OLC opinion: “It is . . . extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”
Civil Service
Trump wants to assert greater control over the federal bureaucracy that he sees—not without justification—as having tried to impede his first term governing plans. He sought to do this at the end of his first term with an Executive Order that aimed to enable the president to move civil servants in certain policy-influencing roles from the “competitive service,” which is governed by merits-based, apolitical hiring with various job protections, to the “excepted service,” where officials can be selected based on political factors and fired at will.
Trump’s plans—and resistance to them—reflect an old debate about democratic control over the bureaucracy versus neutral apolitical bureaucratic expertise. Whether and how quickly Trump succeeds in imposing his vision will depend on complicated statutory arguments (for competing accounts, see here and here), the president’s constitutional power to fire executive branch officials (which the Supreme Court has been interpreting in a more robust fashion for a while now), and the efficacy of regulations that the Biden administration put in place to slow down Trump’s purge.
There is an easier way to clear out the bureaucracy of unwanted officials: Threaten to fire them, make their lives miserable, or sully their agencies’ reputations, thereby inducing the officials to quit. This appears to be an important part of the Trump 2.0 strategy.
Inspectors General
Inspectors general are semi-independent watchdogs who conduct audits and investigations of executive branch actions and who have special reporting obligations to Congress. Using a combination of the power to fire and manipulation of FVRA, Trump in his first term was more aggressive than any prior president in removing unwanted inspectors general and replacing them with more pliant ones. Congress responded in the 2023 National Defense Authorization Act to constrain the president’s authority to engage in some of these maneuvers. Trump 2.0 will be an experiment in the efficacy of this reform.
Structural Deregulation and Administrative Sabotage
It is clear from the overview thus far that a core Trump deregulatory strategy—beyond rolling back Biden era policies, rules, and regulations—will be to attack the capabilities of the government agencies the administration does not like. Jody Freeman and Sharon Jacobs call this “structural deregulation,” which they say “targets an agency’s core capacities” by attacking its “staffing, leadership, resource base, expertise, and reputation.” They explain: “Structural deregulation differs from traditional ‘substantive’ deregulation, which targets the repeal of particular agency rules or policies. While substantive deregulation may have serious consequences, it is relatively transparent, limited in scope, and subject to legal challenge. By contrast, structural deregulation is stealthier. It is death by a thousand cuts.” (David Noll has a related idea, which he calls “Administrative Sabotage.”)
The idea of undermining a department or agency by incapacitating it, while not new, has never been tried on anything like the scale that Trump 2.0 portends. In contrast to substantive deregulation, which is heavily law-governed, “public law is remarkably ill-equipped to address” structural deregulation, say Freeman and Jacobs. The Supreme Court in Trump 1.0 was pretty insistent on legal niceties for substantive deregulation; it is not clear that it will do the same for structural deregulation in Trump 2.0. This will likely be a major issue in the Trump years.
Executive Branch Norms
The president, as Trump v. United States recently reiterated, has the constitutional authority to determine which crimes the Justice Department should investigate and prosecute. Following Watergate, from the Ford administration until Trump’s first term, the executive branch took steps to establish and follow rules and norms to respect both Justice Department independence on these matters, and to ensure apolitical law enforcement within the Department.
Trump violated these norms on a regular basis, though many in his administration, including in his Justice Department, followed them. The Biden administration pledged to return to compliance with these norms but often fell short. Now Trump comes to office a second time having pledged to disregard these norms even more aggressively, and this time he has nominated people in the Justice Department—most importantly, Pam Bondi for Attorney General and Kash Patel for FBI Director—who appear to share his vision. The first test of these norms will be what kind of policy (if any) the new administration issues to govern White House-DOJ communications. (Here and here are the Biden administration memos on its policy; here is Trump 1.0 White House Counsel Don McGahn’s memo on the policy.)
Lawfare
A related issue is lawfare, which is the use of law as a political weapon. The Trump team believes that the Biden administration used lawfare against it in its two prosecutions of Trump, and in its norm violations along the way. It also thinks the prosecutions of Trump in New York and Georgia, and the efforts to keep him off the presidential ballot under the 14th Amendment, were additional forms of lawfare. These beliefs come against the background of Trumpian anger over earlier investigations of Trump and his 2016 campaign, elements of which the DOJ inspector general criticized as norm-breaking or unlawful, as well as a growing pattern of tit-for-tat investigations by one administration against the other.
Many people, approximately half the country, disagree with the anti-Trump lawfare charges. But Trump believes them. In the 2024 election he ran on pledges to retaliate by using the Justice Department to go after his many perceived political enemies. And once again, Bondi and Patel seem to be on board. Another round of investigations and prosecutions of the prior administration will a disaster for the already-diminished reputation of the Justice Department for apolitical law enforcement—though it is possible that destroying what is left of the Department’s reputation in this regard is the Trump team’s goal.
Financial Matters
Following Watergate, Congress enacted statutes that imposed financial disclosure and conflict of interest requirements for executive branch officials. But with narrow exceptions, and for various reasons, these laws excluded the president and vice president. Nonetheless, presidents after Watergate until Trump complied with the laws voluntarily in what became an accepted norm. Trump 1.0, of course, defied these norms. Trump refused to disclose his taxes. And he skirted conflict of interest norms by refusing to divest his assets, declining to create a meaningful blind trust, and prevailing in legal and political challenges to these moves. Trump in the 2020 and 2024 campaigns also refused to disclose his taxes, and it is highly doubtful that he will comply with the conflict-of-interest norms that prevailed from 1976-2016.
We will be covering conflict of interest problems in Trump 2.0 closely. This and the tax disclosure matter are important for two reasons. First, they show that Trump through persistent defiance has severely diminished key norms. No one seemed to care about tax disclosure during the 2024 campaign even though the issue was salient in 2016 and 2020. And few are talking about the Trump administration’s looming conflict of interests—not just Trump, but the many billionaires inside and at the edges of his administration involved in matters that touch on their business interests—with nearly the same fervor as in the past.
Second, Trump’s braintrust may be trying to establish a novel conception of conflicts of interest in government. On this view, people who succeed in business know best how to fix the government and the economy. Any personal benefit they receive from government measures they implement reflects their successful performance in the public role. Traditional conflict of interest rules rest on an outdated vision of “neutral” government officials who supposedly protect public values against private interests, but in fact are inimical to private-sector flourishing because they don’t understand the private sector and yet impose self-serving governmental rules that harm innovation and the economy. Viewed this way, the conflict of interest debate is a struggle between the public and private, with the public just another special interest group that wrongly seeks to occupy the moral high ground. A form of this debate will likely be prevalent in many guises in Trump 2.0.
Troops in the Domestic Sphere
Trump has threatened to use the U.S. military in the domestic sphere for many reasons—to detain and expel unlawful immigrants, to quell violent protests, and to go after “the enemy from within” that includes unnamed “sick people, radical left lunatics.” Most of this as stated would be unlawful, but some of it might not be.
The main source of presidential authority to use force in the domestic sphere is the Insurrection Act, a statute that dates to the 1790s. It authorizes the president to deploy the armed forces and state militias inside the United States when states call for federal assistance in quelling an “insurrection,” or as the president “considers necessary” to enforce federal law against “obstructions,” “combinations,” or “assemblages,” or to quell “domestic violence” or “conspiracy” that impedes the enforcement of constitutional rights or “the course of justice” under federal law. The broadly worded statute lacks any congressional check—no reporting or consultation requirement, no fast-track congressional process for curbing the use of the authority, and no time limit on deployment. It is a dangerous statute that many think should be reformed.
The Insurrection Act is consequential because it counts as express congressional authorization that renders inapplicable the Posse Comitatus Statute’s prohibition on using the military for domestic law enforcement. There are other express congressional authorizations that enable the president to use the military for domestic law enforcement. Trump can employ a robust set of authorities and laws to assist with immigration detention and enforcement, though the issue will surely be thoroughly litigated. Other statutes authorize military deployment to support counter-narcotics and related law enforcement operations, and to enforce criminal laws related to protecting U.S. and foreign officials. Using the military in the domestic sphere may be politically very challenging, but extant law clearly empowers the president to do so in many circumstances.
And So Much More
The president (according to the Justice Department) has few practical legal constraints when he wishes to use force, offensively or defensively. The president also has full unilateral control over the use of nuclear weapons. Congress and the courts are on the sidelines on these issues, at least until something goes badly wrong. The real constraints here are presidential judgment, politics, norms, and bureaucratic inertia or blowback. Trump has pledged to use force less aggressively than Biden, but we will see.
Trump used the pardon power much more aggressively and self-servingly in his first term than any president—even taking into account Biden’s pardon of his son Hunter. Trump has pledged to pardon most if not all of those convicted in connection with January 6, and he has long floated the idea of a self-pardon. We will surely be writing about pardon issues during the next four years.
Trump has threatened NATO in various ways and recently implied that he will withdraw from the North Atlantic Treaty in his second term if NATO countries don’t “pay their bills.” Congress in Section 1250A of the 2024 National Defense Authorization Act, however, prohibited the president from leaving the North Atlantic Treaty except with the consent of two-thirds of the Senate or an Act of Congress, and further required the president to notify appropriate congressional committees in writing 180 days prior to exiting the NATO treaty. The Trump 1.0 OLC wrote an opinion that appears to view restrictions like this as unconstitutional. So Trump (if he decides to leave NATO) might not abide by the congressional restriction, and it is not clear who would have standing to challenge such a decision.
I could go on and on. But you get the drift. There will be much for Bob and me to discuss.