Jack Goldsmith and Bob Bauer ponder President Donald Trump’s impact on executive power during the first year of his second term.
In the pursuit of this agenda, Trump has unquestionably expanded presidential power in important ways. But whatever other successes he may tout, his administration is not on a clear path to “radical” constitutional change.
Trump’s central achievement has been to establish unprecedented vertical control over the executive branch.
He has imposed his legal will on the executive branch like no previous president. The keys have been formal directives; senior lawyers who previously served as the president’s personal counsel (including the attorney general, the solicitor general, and the White House counsel); strict loyalty tests; and hair-trigger firings for deviations.
Backed by a decade of Supreme Court precedents, Trump has also successfully asserted Article II power to fire executive-branch officials, including members of agencies traditionally insulated by for-cause protections. The Supreme Court in interim orders provisionally upheld several Trump agency firings and recently heard oral arguments in Trump v. Slaughter, which squarely raises the president’s power to remove heads of multimember agencies despite statutory protections. Trump is expected to win this important case, but the depth of the president’s Article II firing power will depend on how the Court writes its opinion.
The Trump administration has also claimed statutory authority to fire or cause voluntary separation of all manner of civil servants — 212,840 as of Dec. 16. It is unclear what percentage of these actions are lawful, and the Supreme Court has thus far avoided direct engagement with the president’s statutory arguments. And yet Trump has demonstrated to a far greater degree than any modern president that the “civil service . . . is not insulated from politics,” as Nick Bednar put it.
Trump has also manipulated statutory mechanisms and disregarded norms to condition, delay, cancel, or otherwise disrupt federal obligations and expenditures. Here too it is unclear here how much of this is lawful, and Supreme Court interim orders on such issues have focused primarily on who can sue and where. Yet even these procedural rulings have given the president a large advantage in restructuring the executive branch.
