After President Trump leaves the White House in 2021, critics of his unconventional use of executive power have urged Congress to tighten legal limits on when presidents can unilaterally reshape the U.S. government with the stroke of a pen. can give But lawmakers largely did not act.
On Monday, as Mr. Trump took the oath of office to begin his second term, he emphasized a muscular vision of presidential power. Not only did it revive some of the broader understandings of executive authority that had been neglected, but it went further and made new claims for clear and inherent constitutional power.
Amid a blizzard of executive orders, Mr. Trump Directed Prosecutors have refused to implement a law that would ban the popular social media app TikTok until its Chinese owner sells it. President Joseph R. Biden Jr. signed the measure after it passed with largely bipartisan support, and the Supreme Court unanimously upheld it.
Whatever the merits of the law, the Constitution says the president “shall take care that the laws be faithfully executed.” Mr. Trump offered no clear explanation of how he has any legitimate power to suspend the law, only a vague reference to his “constitutional responsibility” for national security, foreign policy and other key executive functions. indicated.
Unilateral measures such as emergency declarations and executive orders cannot create new statutory powers for the president. Instead, they are a vehicle through which the president exercises the legal authority he already has, either because the Constitution grants him the office or because Congress passes a law creating it. What did
That said, there are often disputes about the proper interpretation of the scope and limits of executive power. It is not unusual for a president to use an executive order to take action whose legality is contested, leading to court battles that ultimately end up before the Supreme Court. .
It is unclear whether anyone opposed to the suspension of the TikTok law would have standing to sue. But many of Mr. Trump’s actions are related to immigration law, making it highly likely that legal challenges will follow and the legality of his executive power claims will go before judges.
In several orders, Mr. Trump has emphasized his constitutional role as commander-in-chief of the military, blurring the line between immigration law enforcement and war powers, portraying immigrants as invaders.
In his inaugural speech, he said that as the Commander in Chief, I have no greater responsibility than to protect my country from threats and attacks and that is exactly what I am going to do.
In these orders, Mr. Trump announced that newly arrived immigrants cannot request it; A law that allows them to apply for asylum.. As a basis, he said the Constitution gave him inherent powers “to prevent the physical entry of aliens engaged in an attack on the United States,” in addition to citing a few vague provisions of immigration laws.
Another one Such an order The U.S. Northern Command, which oversees military operations in continental North America, was directed to quickly develop a plan for a “campaign” to seal the border, including “large-scale illegal migration, By repelling forms of assault, including drug trafficking, human trafficking and smuggling, “other criminal activities.”
Mr. Trump and his advisers have talked about using the sedition law to use troops as additional immigration agents at the border. But the order referred only to his constitutional powers as commander-in-chief, raising the possibility that he envisioned using troops for military operations rather than acting as a law enforcement agency. are
Some of the orders were a return to the battles over executive power that unfolded during Mr. Trump’s first term.
On Monday, Mr. Trump responded to a 2019 initiative. Declaration of National Emergency At the border he also invited one. Law which allows presidents, during a state of emergency, to redirect military funds to needed construction projects. His goal, in 2019 and again now, was to spend more taxpayer money on the border wall project than lawmakers authorized.
Is there really an emergency that would be addressed by an expanded border wall, and that would justify limiting Congress’s role in deciding where to send taxpayer money?
The wall doesn’t solve a major border problem in recent years: the high number of immigrants seeking asylum, flooding the system and causing long backlogs for hearings. And over the past seven months, illegal crossings have fallen to their lowest level since the summer of 2020, during the early stages of the coronavirus pandemic.
But the facts matter less than whether or when it is legal for presidents to use emergency powers, declarations governed by the National Emergencies Act of 1976.
The law does not strictly define the circumstances under which the president can determine that a state of emergency exists, leaving him with essentially unfettered discretion to unlock the necessary powers. give But previous presidents practiced self-restraint.
In his first term, critics challenged the legality of Mr. Trump’s border wall spending, but the Supreme Court never resolved the dispute before Mr. Biden took office and canceled the plans. So any new legal challenge would have to start from scratch.
In the wake of Mr. Trump’s first term, House Democrats passed a bill in 2021 that would have tightened limits on the president’s use of emergency powers, part of a package of reforms they called “Protecting Our Democracy.” Act”. But Republicans opposed the measure as a partisan attack on a president who was no longer in office anyway, declaring him dead on arrival in the Senate.
Mr. Trump’s absence from the presidency, however, turned out to be temporary.
In a show of strength back at the office, that too Declaration of National Energy Emergency So that, as he said in his inaugural speech, “We will drill, children, drill.” No president has declared an emergency like this before, and it gives him the power to suspend legal protections for the environment and expedite permits for new oil and gas projects.
The country’s energy situation hardly looks like an emergency: the United States Producing more oil than any other countrydue in no small part to the fracking boom and the thousands of new permits to drill on federal lands issued by the Biden administration — surpassing Mr. Trump’s first-term record. Prices for Gasoline, natural gas and electricity They are relatively low compared to historical levels.
But the order said that Mr. Trump had determined that the Biden administration’s policies had “placed our nation in a state of national emergency, with uncertainly inadequate and intermittent energy supplies, and An increasingly unreliable grid requires urgent and decisive action.” He also cited the increasing need for electricity to run computer servers for artificial intelligence projects.
Elizabeth GoethenBrennan, a director of the Center for Justice’s Liberty and National Security Program who has written extensively on presidential emergency powers, predicted that many of Mr. Trump’s planned actions would be challenged in court.
“Emergency powers should never be used to solve long-standing problems like illegal immigration that can and should be solved through legislation,” said Ms. Goten, who asked Congress to curb presidential power. was among those who demanded “The bad news is that Congress failed to pass reforms to the National Emergency Act that would have helped prevent such abuses.”
There is no dispute that Mr. Trump had legitimate authority to take other unilateral actions. The Constitution clearly gives presidents unfettered authority to pardon or commute sentences for federal criminal offenses, so there is little doubt that Mr. Trump has the power to pardon some 1,600 people. had authority over those who were accused or punished. Offenses in connection with capital riots.
But Mr. Trump appeared to offer new or expanded interpretations of legal authorities in other ways.
He ordered his administration to make recommendations on whether Name some international groups and drug cartels. As “foreign terrorist organizations”, extending a law aimed at groups that use violence for geopolitical and ideological purposes to criminal groups that, while violent, profit are motivated by
It also established the possibility of inclusion in the movement. Alien Enemies Act 1798 Illegally deporting immigrants suspected of being members of drug cartels and international criminal groups without a full hearing. Text of this Act A link to the actions of a foreign government seems to be required.so it is unclear whether the courts will allow Mr. Trump to deny people deportation hearings.
Mr. Trump is also trying to change the basic understanding of a provision in the 14th Amendment to the Constitution that grants citizenship to most children born on US soil and “subject to the jurisdiction” of the US government. This provision has long been understood to include infants born to undocumented parents.
In one OrderMr. Trump emphasized a theory developed by conservatives who want to reduce so-called birthright citizenship because they see it as a magnet for illegal immigration. By this reasoning, the provision could be interpreted not to apply to children whose parents are not US citizens or lawful permanent residents, although visitors or undocumented persons may be subject to public prosecutorial jurisdiction for violations of the law. are subject.
Mr. Trump directed agencies to issue citizenship-verifying documents—such as passports and Social Security cards—to children born to undocumented immigrants or parents who are legally but temporarily in the United States. Avoid doing it.
Hours later, including critics A coalition of democratically controlled statesBrought to court more than once Challenges Against this, Mr Trump, the coalition asserted, sought to violate “this well-established and long-standing constitutional principle by executive fiat”.
It was another legal claim that seemed destined to come before the Supreme Court.
