Trump has adopted a theory from former Supreme Court justice Antonin Scalia that presidents control the entire executive branch
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WASHINGTON − President Donald Trump is embracing a decades-old theory that could give him unprecedented control over the executive branch, setting up a showdown with Congress and the courts that some fear amounts to a constitutional crisis.
Legal experts say we’re not there yet. The White House dismisses such concerns as “fearmongering.”
And with Trump’s fellow Republicans who control Congress remaining largely on the sidelines of this question, Democratic state officials, federal unions and employees are taking the lead in challenging the president.
The growing power of the presidency − and its role with Congress as an equal branch of government − will be on display when Trump delivers a major address to Congress on Tuesday. The speech at the Capitol is akin to the State of Union, but in this case, there is little expectation of a fight over Trump’s authority and its constitutional underpinnings because the House and Senate are controlled by fellow Republicans.
A Reagan-era political theory born with Antonin Scalia
The political theory Trump adopted to consolidate his control over the executive branch grew out of the wilderness of a lone dissent by Justice Antonin Scalia in a 1988 Supreme Court decision. The theory called the “unitary executive,” which holds that the president controls the entire executive branch, has gained broad support in Republican circles and reached its peak under Trump, according to legal experts.
However fractious the litigation becomes, the eventual rulings could redefine the relationship between the executive, legislative and judicial branches of government.
“We don’t have a clash yet between Congress and the president. We don’t have as of yet a direct refusal to obey court orders,” Jeremy Paul, a constitutional law professor at Northeastern University, told USA TODAY. “I think that even though we haven’t hit that point yet, we clearly have hit the point that the current administration is asserting positions about its own authority that is inconsistent with constitutional tradition. How far they are going to go in pursuit of those assertions remains unseen.”
Congress largely absent from lawsuits fighting Trump’s spending cuts
During his first month after returning to office, Trump moved swiftly to dismantle federal agencies such as the U.S. Agency for International Development, which provides humanitarian and development assistance overseas, and the Consumer Finance Protection Bureau, which protects consumers from banks.
He has fired 20,000 workers and counting to trim the federal payroll, under recommendations from billionaire adviser Elon Musk and the Department of Government Efficiency. Staffing cuts are about to get deeper, Trump told reporters Wednesday.
“We’re cutting down the size of government,” Trump said at his first Cabinet meeting of his new term. “We’re bloated. We’re sloppy.”
But lawmakers have largely stayed out of those fights, leaving it to Democratic state attorneys general, federal unions, workers and advocacy groups to file nearly 100 lawsuits against the administration. The litigation temporarily blocked several of Trump’s initiatives by arguing the president can’t ignore Congress authorizing and funding agencies and workers.
“Congress should be the first actor – Republicans and Democrats, Senate and House – to have their hair on fire,” Philip Bobbitt, a constitutional law professor at Columbia University who served in seven administrations and is a fan of the unitary executive, told USA TODAY. “But I think the courts will handle this.”
Trump’s dismantling CFPB violates constitutional structure: Democrats
On Friday, a group of 203 Democratic House members filed an argument in one of the cases seeking to prevent Trump from dismantling the Consumer Finance Protection Bureau.
The lawmakers led by Rep. Maxine Waters, D-Calif., and House Minority Leader Hakeem Jeffries, D-N.Y., said the administration’s “sweeping stop-work orders, with plans to arbitrarily fire most employees, represent blatant disregard for Congress’s role.”
“Not only do those efforts violate our law and constitutional structure, they also threaten the consumers the CFPB was created to protect – and has protected since its creation a decade and a half ago,” the lawmakers wrote.
Some GOP lawmakers have raised concerns, including about the inadvertent firing of workers from the agency that oversees the nuclear weapons arsenal.
But Republicans, who control both the House and the Senate and could decide to file their own lawsuits, have not taken steps to rein in Trump.
Trump contends limits on cutting spending ‘a disaster’: ‘We’re bloated. We’re sloppy’
The Constitution gives Congress the power to collect taxes and “pay the Debts and provide for the common Defence and general Welfare of the United States,” which is commonly referred to as the “power of the purse.”
To bolster that power, Congress approved the Impoundment Control Act in 1974. The statute allowed a president to identify funds he refused to spend, but if lawmakers didn’t agree within 45 days, the money would still be spent.
Trump argues presidents can still refuse to spend money. His Office of Management and Budget sought to freeze federal grants and loans, a plan temporarily on hold in the courts.
“This disaster of a law is clearly unconstitutional – a blatant violation of the separation of powers,” Trump said in a 2023 campaign video. “When I return to the White House, I will do everything I can to challenge the Impoundment Control Act in court and if necessary get Congress to overturn it.”
Presidents have long sought veto power to cancel specific provisions in spending bills rather than entire pieces of legislation. But in 1998, the Supreme Court ruled the so-called line-item veto unconstitutional.
U.S. District Judge John McConnell in Rhode Island cited the opinions of several conservatives in temporarily blocking the Trump grant freeze in January:
In a 1969 Justice Department memo by then Assistant Attorney General William Rehnquist, the future chief justice of the Supreme Court tapped by President Ronald Regan, called it “extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”In a 1985 memo by White House lawyer John Roberts, the current chief justice appointed to the court by George W. Bush, said “No area seems more clearly the province of Congress than the power of the purse.”In 2013, Supreme Court Justice Brett Kavanaugh, who Trump later picked, wrote when he was then an appeals judge, wrote that “even the President does not have unilateral authority to refuse to spend the funds.”
A federal judge in California temporarily blocked Trump’s large-scale termination of probationary employees by finding the Office of Personnel Management, which directed other agencies to fire “probationary employees that you have not identified as mission-critical,” didn’t have the authority to do so.
“No statute – anywhere, ever – has granted OPM the authority to direct termination of employees in other agencies,” U.S. District Judge William Alsup wrote Friday.
Trump appeals adverse rulings; says he won’t defy them
Trump and his aides have excoriated judges who have temporarily blocked firings, agency changes and policies dealing with citizenship and military service by transgender people. But Trump said he would appeal adverse court rulings rather than defy court orders.
“I always abide by the courts,” Trump told reporters Feb. 11 in the Oval Office. “Then I’ll have to appeal it.”
White House press secretary Karoline Leavitt accused reporters of “fearmongering the American people into believing there is a constitutional crisis.”
But she also criticized judges who she said were “acting as judicial activists rather than honest arbiters of the law.”
Musk suggested on social media that judges “who are grossly undermining the will of the people” should be impeached.
But Attorney General Pam Bondi told reporters on Feb. 12 that judicial impeachments are “not going to be happening now.”
“We’re going to follow the law right now,” she said. “We’re going to follow the process.”
Bobbitt, the constitutional law professor, said the likelihood of Trump defying the Supreme Court is “nil.” “Now, President Trump has surprised me before, but I just don’t see it,” he said.
Trump adopts Scalia theory that president controls entire executive branch
The “unitary executive” theory that Trump has adopted to lead the executive branch with a single voice grew out Scalia’s dissent in an 8-1 Supreme Court decision that upheld the Independent Counsel Act.
Scalia argued that the Constitution vested all the power of the executive branch in the president, who has the ultimate power to decide who works there.
“As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power,” Scalia wrote.
Decades later, Trump wields that theory to dismantle federal agencies, fire thousands of workers and claim control of so-called independent agencies such as the Securities and Exchange Commission.
“What that generally means, for people who believe in that, is that you can’t tell the president he must keep on individuals that his predecessor selected,” William Jay, a former Scalia clerk and assistant to the solicitor general now practicing at Goodwin Procter, told USA TODAY. “But it doesn’t mean the president can ignore laws passed by Congress.”
Trump goes further with independent agencies than Reagan, Bush
Trump has also aimed to control agencies to which Congress gave some independence by protecting them from being fired for reasons other than wrongdoing.
Trump fired 17 inspectors general, the watchdogs that scrutinize agencies for waste, fraud and abuse. Courts have temporarily blocked him from firing the head of the Office of Special Counsel, which was designed to protect federal workers from prohibited personnel practices, and a member of the Merit Systems Protection Board, which hears personnel disputes.
Trump could also seek to fire board members of independent agencies, despite a unanimous 1935 Supreme Court precedent. The high court ruled unanimously that President Franklin Roosevelt didn’t have the power to fire a member of the Federal Trade Commission because the Constitution never gave the president the “illimitable power of removal.”
But Acting Solicitor General Sarah Harris told Congress in February she intended to urge the Supreme Court to overturn that 90-year precedent. She also said the administration considers the statute restricting presidents from firing board members of the Federal Trade Commission, the National Labor Relations Board and the Consumer Product Safety Commission unconstitutional and she would no longer defend it.
Trump also signed an executive order on Feb. 18 that said he or the attorney general would interpret the law for independent agencies to prevent disagreements within the executive branch.
Jay, the former Scalia clerk, said those moves go beyond what former Presidents Ronald Reagan or George W. Bush did with independent agencies, even though those Republican presidents also supported a strong executive.
“I would venture there is some alarmism built into anything that Trump does,” Jay said. “The unitary executive is not the same thing as an all-powerful executive.”
Trump’s challenge to birthright citizenship tested in court
Another Trump priority, which was temporarily blocked by four federal courts, seeks to end automatic citizenship for children born to two parents who are in the country without legal authorization.
Birthright citizenship was ratified as the 14th Amendment to the Constitution in 1868. The Supreme Court upheld it in 1898. But Trump expects his order to discourage illegal immigration will be upheld at the high court.
Bobbitt, who served in seven administrations, said he welcomed the case because challenges to even longstanding precedents canconfirm their authority.
“I want to hear the other side,” said Bobbitt, who expects the high court to uphold birthright citizenship. “Give it your best shot.”
DOJ dropping charges against NYC Mayor Adams was contentious
One of the most provocative steps Trump’s administration has taken was when the Justice Department asked to drop corruption charges against New York City Mayor Eric Adams.
Critics said Adams appeared to be exchanging his freedom for greater enforcement of immigration laws in the city, which defense and government lawyers denied.
The action sparked the resignations of the acting U.S. attorney in New York and six others who refused to carry out the order. U.S. District Judge Dale Ho has asked an independent lawyer, former solicitor general Paul Clement, to argue why the case shouldn’t be dropped.
The Trump administration wasn’t sorry to see these prosecutors go. After defending his order to drop the Adams charges, Emil Bove, the acting deputy attorney general, issued a statement suggesting there were “templates for resignation letters available on the websites of the New York Times and CNN” for anyone who didn’t agree with Trump’s priority of strengthening immigration enforcement.
Trump, critics compare his claims on power to monarchy
One thing Trump and his critics agree upon is that his claims to power reflect that of a monarch.
“He who saves his Country does not violate any Law,” Trump said in a Truth Social post Feb. 15 that echoed the late French leader Napoleon Bonaparte.
After halting congestion tolls in New York City, Trump posted on Truth Social on Feb. 20 that he had saved the city. “Long live the king!” he wrote in all-caps.
Sen. Adam Schiff, D-Calif., who led the first impeachment of Trump, said on social media on Feb. 15 that the Napoleonic quote was, “Spoken like a true dictator.”
Trump’s former Vice President Mike Pence posted a link that day to an essay about the president’s role.
“A president who slights the Constitution is like a rider who hates his horse: he will be thrown, and the nation along with him,” Pence wrote.
Trump’s popularity will remain key to his success: legal experts
Trump is likely to continue getting his way until his policies are viewed as unpopular, legal experts said. His approval rating after the first month since his return to office is nearly 48% − a shade higher than his disapproval rating − according to an average of polling by FiveThirtyEight.com.
But several contentious and intertwined debates loom in Congress that could test Trump’s popularity. Lawmakers are debating the deep spending cuts he is seeking, the tax cuts he has proposed and the need to increase the limit the country can borrow to cover its debts.
Paul, the constitutional law professor, said Trump’s priorities will be hurt more if the policies become viewed as unpopular than from any decisions by lawmakers or judges.
“The single most important source of what you might call ‘putting on the brakes’ is not Congress and it’s not the Supreme Court,” Paul said. “It’s the public.”