How Trump is Pushing the Limits of Presidential Power with First Orders

After President Trump leaves the White House in 2021, critics of the executive branch are asking Congress to tighten legal limits on when the president can reshape the government. American by the stroke of a pen. But the legislators did not act.

On Monday, as President Trump took the oath of office to begin his second term, he reinforced a muscular vision of presidential power. Not only did he revive some of the broader understandings of executive power that had been left unresolved, but he also advanced new constitutional claims.

In an executive order, Mr Trump instructed prosecutors not to enforce a law banning the popular social media app TikTok until it is sold by its Chinese owner. President Joseph R. Biden Jr. signed the measure into law. after it passed with bipartisan support, and the Supreme Court unanimously upheld it.

Regardless of the merits of the law, the Constitution states that the president “shall take care to faithfully execute the law.” Mr. Trump did not provide a clear explanation of how he has the legal authority to suspend the law, only vaguely referring to his “constitutional responsibility” for national security, foreign policy “and key executive functions.” other”.

Single acts such as emergency declarations and executive orders cannot create new legislative powers for the president. They are vehicles used by the president with the legal powers he already has, either because of the constitution given by his office or because Congress passed a law that created it.

That is, there are often disputes over the proper interpretation of the scope and limits of executive power. It is not uncommon for presidents to use executive orders to take measures that challenge their legality, leading to legal battles that eventually reach the Supreme Court.

It is not clear that those who oppose the suspension of the TikTok law may stand to sue. But many of Mr. Trump’s actions involve immigration law, so legal challenges are likely and the legitimacy of his executive power claims will sit before judges.

In a series of orders, Mr. Trump has invoked his constitutional role as commander-in-chief, portraying immigrants as aggressors and blurring the lines between immigration enforcement. and fighting forces.

“As commander-in-chief, I have no greater responsibility than to protect our country from threats and invasions, and that is exactly what I will do,” he said in his opening speech.

Among those orders, Mr. Trump announced that newly arrived immigrants would not be able to invoke a law that would allow them to apply for asylum. As a basis, he said that the Constitution gave him “inherent authority” to “prevent the entry of aliens engaged in the invasion of the United States,” in addition to citing several provisions of the U.S. Constitution. the immigration.

Another such order ordered the US Northern Command, which oversees military operations in the North American continent, to quickly develop a plan for a “campaign” to seal the border ” by eliminating forms of invasion, including illegal immigration, drug trafficking, human trafficking, and other crimes.”

Mr. Trump and his advisers have discussed invoking the Insurrection Act to use the military as additional immigration agents at the border. But the order only referred to his constitutional authority as commander-in-chief, raising the possibility that troops would be used for military operations rather than military operations. as a law enforcement officer.

Some of the orders are a return to executive power battles that erupted during Mr. Trump’s first term.

On Monday, Mr. Trump repeated the action from 2019 by declaring a national emergency at the border. He also proposed legislation that would allow the president, during an emergency, to divert military funds to construction projects related to the need. His goal, in 2019 and now, is to spend taxpayer money on border wall projects as authorized by the legislature.

Is there really an emergency that an expanding border wall would address, and that would justify subverting Congress’ role in deciding where to direct taxpayer dollars?

The wall does not solve the biggest border problem in recent years: the number of immigrants seeking asylum, flooding the system and leading to long backlogs of hearings. And in 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 it is less important whether or when it is legal for the president to invoke emergency powers, a declaration that is governed by the National Emergency Act of 1976.

This law does not clearly define the circumstances in which the president may declare an emergency, leaving him with unfettered discretion to unleash the necessary powers for himself. But the former president followed the principle of 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 projects. So any new legal challenge would have to start from scratch.

After Mr. Trump’s first term, House Democrats in 2021 passed a bill that would tighten limits on the president’s use of emergency powers, part of a package of reform he called “Protecting the Law of Democracy”. But Republicans dismissed the measure as an attack on a political party no longer in office, leaving it dead after it reached the Senate.

However, Mr. Trump’s absence from the presidency turned out to be temporary.

In a show of force on his return to office, he also declared a national energy emergency so, as he said in his inaugural address, “we’re going to drill, baby, drill.” No president has ever declared this kind of emergency before, and it gives him the power to suspend legal protections for the environment and speed up licensing of new oil and gas projects.

The country’s energy situation does not seem to be urgent: the United States produces more oil than any other country, in part because of the boom and because of new permits of thousands to evict federal land released by the Biden administration — surpassing Mr. Trump’s first-term record. Gasoline, natural gas and electricity prices are relatively low compared to historical levels.

But the order said that Mr. Trump had determined that the policies of the Biden administration “have pushed our country into a national emergency, where the supply of insufficient and interrupted energy, and the an insecure network, requires swift and decisive action.” He also cited the growing need for electricity to run computer servers for artificial intelligence projects.

Elizabeth Goitein, director of the Brennan Center for Justice’s Liberty and National Security Program who has written extensively on presidential emergency powers, predicted that many of Mr. Trump’s proposed actions would be challenged in court.

“Emergency powers should never be used to solve long-standing problems such as illegal immigration that can and should be addressed through legislation,” said Mrs. Goitein, who was among those who called for the Congress to curb presidential power. “The bad news is that Congress has failed to pass reforms to the National Emergency Response Act that would help prevent such abuses.”

There is no dispute that Mr. Trump has the legal authority to take another unilateral action. The Constitution clearly gives the president unlimited power to pardon people for federal crimes or to commute their sentences, so there is no question that he has the power to pardon people. the nearly 1,600 people accused or convicted of it Mr. Trump. crimes related to the Capitol riots.

But Mr. Trump’s new or expanded interpretation of legal authority appeared in a different way.

He ordered his administration to make a proposal to designate foreign gangs and drug cartels as “foreign terrorist organizations,” expanding a law meant for groups that use violence for geopolitical purposes. and ideological of the criminal groups that, although also violent. motivated by profit.

He also raised the possibility of invoking the Alien Enemies Act of 1798 to deport immigrants suspected of being members of drug cartels and transnational criminal gangs without due process. The text of that law appears to require a link to foreign government action, so it’s unclear whether the court will allow Mr. Trump to invoke it to deny a deportation hearing.

Mr. Trump is also seeking to change the fundamental understanding of the 14th Amendment provision of the Constitution that grants citizenship to most children born on American soil and “subject to the authority” of the US government. This condition has long been known to include children born to undocumented parents.

In one order, Mr. Trump invoked a theory developed by conservatives who want to block so-called birthright citizenship because they see it as a magnet for illegal immigration. For this reason, the provision can be interpreted as not applying to infants whose parents are not US citizens or lawful permanent residents, even under the jurisdiction of the Attorney General. don’t let visitors or people without legal documents break the law.

Mr. Trump has directed agencies not to issue citizenship documents — such as passports and Social Security cards — to children born to undocumented immigrants or to parents who are legal but temporarily visiting the United States, beginning 30 days after birth.

Hours later, critics, including a coalition of Democratic-controlled states, brought multiple court challenges against it. Mr. Trump, the coalition said, sought to overturn this “well-established and long-standing constitutional principle through the exercise of executive power.”

Yet another legal claim that seems set to come before the Supreme Court.