President Trump entered office two weeks ago with a goal to shock and awe the country with sweeping changes built on his campaign promises. Dozens of executive orders later, many did just that — albeit, with more than a little chaos and a host of legal challenges.
The point is not necessarily to successfully implement all of these changes right away, legal experts told the Globe. Rather, his administration is also laying the groundwork for legal fights that could make their way to a conservative-dominated Supreme Court reshaped by his first term.
So far, a federal judge has blocked Trump’s attempt to ban birthright citizenship for children of some immigrants, after lawsuits nationwide asserted it violated the 14th Amendment. An effort last week to pause federal funding was met with criticism and uncertainty, prompting Trump officials to walk back that move as it faced a court restraining order. And several groups representing federal employees have sued his administration over unprecedented efforts to roll back protections for civil servants.
Those actions amount to just a fraction of Trump’s moves in the first days of his term, many of which are more legally controversial than during his first. That’s called into question what Trump is allowed to do using presidential authority alone.
“It is overwhelming people so that anything that happens after this seems more moderate, only relative to these opening moves,’’ said Jed Shugerman, a Boston University presidential historian and legal expert. “Some of it’s strategic, some of it is negligent or reckless … but Trump 2 is handling things differently than Trump 1, in that they seem to be going for the controversies.’’
Shugerman added that he believes Trump’s “administration is testing the Supreme Court to see how much more they will capitulate,’’ pointing to a case last year where the court ruled Trump had broad immunity for acts conducted as president as he faced felony charges.
While executive orders are not explicitly mentioned in the Constitution, presidents have historically claimed such authority from Article 2, which says “executive power shall be vested in a President of the United States.’’
Legal scholars said it’s not unusual for the president to use executive orders to engage in informal lawmaking, such as regulating the environment or health protections via executive agencies created with Congress’s approval. Many of Trump’s orders, however, aim to circumvent Congress altogether.
Among the most egregious actions he’s taken, several experts said, are attempts to fire or remove protections for independent officials and civil servants. For instance, Trump fired 17 inspectors general, removals that the law requires Congress receive notification of 30 days in advance with detailed reasons why they are being dismissed. Those types of firings, which Trump did not pursue during his first term, Shugerman said, seem to be a “deliberate setup for litigation to challenge Congress’s power to protect officers from partisan or vengeance firing’’ as Trump aims to shape the federal government to be more aligned with him.
“What seems most remarkable about the first couple of weeks of this second term is that, repeatedly, the president is not just asserting broad presidential authority to advance his policy agenda, but is asserting the authority to ignore Congress’s statutes in the course of pursuing his own agenda,’’ said Adam Cox, a legal scholar at New York University.
“It certainly looks like it’s part of a very concerted effort to shift the constitutional landscape on the power to the presidency and to create a more constitutionally powerful president, including by persuading courts to overturn longstanding understandings of the president’s limited powers,’’ Cox added. This is a longstanding goal, he said, of the conservative legal movement.
Cox, who primarily studies immigration law, said presidents traditionally prioritize who to target for immigration enforcement. Former president Barack Obama, for example, implemented the Deferred Action for Childhood Arrivals program that delayed legal action on immigrants who came to the US illegally as children. Trump‘s decision to prioritize all residents, including those without criminal convictions, for removal in recent executive orders, Cox said, seems in line with what past presidents could do.
But Trump’s order to protect states “against invasion,’’ was one of the “starkest examples’’ of how he’s attempting to go around another branch of government by aiming to block “every provision of law Congress has ever passed to afford people permission to remain in the country,’’ Cox said. The order’s language, if upheld, could give Trump the power to shut down even legal immigration pathways and potentially open the door to military action without Congress’s consent.
Many of Trump’s early actions have stemmed from Project 2025, a blueprint for Trump’s second term crafted by conservative allies at the Heritage Foundation think tank that Trump and his allies have repeatedly relied upon since he took office. For instance, Trump’s pick for the Office of Management and Budget, Russell Vought, one of the project’s authors, told Congress said he would support challenging the law to allow the president to invoke impoundment — a Project 2025 suggestion — which could let the president change funding determined by Congress to align with his priorities.
The GOP-controlled Congress has so far put up little resistance to Trump’s actions: The Republican leaders of both the House and the Senate defended Trump’s efforts to pause federal funding, which was viewed by many as shocking deference to the White House. Congress has traditionally jealously guarded its constitutionally granted power to control funding, regardless of party.
Democrats, meanwhile, have struggled to respond to Trump in a quick, coordinated manner. At a press conference in Revere Friday, Representative Ayanna Pressley acknowledged that Democrats “are going to need to match [Trump’s] energy’’ and suggested mirroring their response to the COVID-19 pandemic, when “we had to be nimble, we had to innovate, we had to develop new ways of resiliency.’’
“Presidents do have the advantage that they can move first and then others have to react to it … so it’s not shocking that President Trump is taking full advantage of that,’’ said Andrew Rudalevige, a Bowdoin College professor who studies presidential power.
Turning to the courts as the primary mechanism to stop Trump’s actions — Massachusetts Attorney General Andrea Campbell has already sued Trump twice — means a recent trend of the Supreme Court being brought into “every single dispute in American politics’’ will likely continue, Rudalevige said.
In his view, “there are a lot of orders that the administration is issuing largely as lawsuit bait, hoping that some of it will stick.’’ Trump’s attempt to freeze federal funds, Rudalevige said, demonstrated “a real willingness to push the bounds, to violate the letter of the law in all kinds of cases.’’ And even if courts don’t uphold Trump’s orders, he noted, the administration can still use those orders as messaging tools to say they took action in a particular area.
During his first term, Trump had the worst record of any modern president at the Supreme Court, The Washington Post found, despite having a conservative majority for part of his term. It’s not assured that the court will rule with him on everything; already, the court upheld a TikTok ban-or-sale law signed last year that Trump advocated against. Legal scholars expect the court will be skeptical of Trump’s attempts to grant him appropriations powers or reshape the 14th Amendment.
Still, Shugerman, the Boston University professor, said Trump saw during his first term that even if a court ruled against him, “there was no penalty for throwing a whole bunch of things against the wall, rescinding them, and trying again.’’ The Supreme Court upheld his third iteration of a travel ban on many Muslim-majority countries, for example, after courts struck down the first two.
And experts said some of Trump’s actions, while controversial, may be able to withstand scrutiny. For instance, his executive order ending federal support for gender transitions for people under 19 could qualify under federal policies he is allowed to regulate, and his efforts to house migrants facing deportation at Guantanamo Bay align with past presidents’ actions.
What Shugerman is more worried about, however, is what Trump’s next moves might be, should the courts decide not to uphold his actions.
“My big picture concern with all of this is that when courts are going to rule against the Trump administration, even the Roberts court, is Trump planning on defying court orders,’’ Shugerman said, “and would lower officials also be complying with the president’s agenda, as opposed to complying with legal orders?’’
Anjali Huynh can be reached at anjali.huynh@globe.com.