Donald Trump is a reckless president, but not yet a lawless one – The Economist – 20.02.25
- Michael Julien
- Feb 23
- 10 min read
He has yet to flatly defy a court order, which would initiate a constitutional crisis.
All American Presidents eventually arrive at the realisation that they ought to have more power. But most do at least accept that Congress and the courts should play some part in governing the country. Donald Trump, however, seems to see Article II of the constitution, which lays out the president’s powers, as a blank cheque. He has a tendency to explain to friendly audiences, “I have the right to do whatever I want as president.” This week on social media, in much the same vein, he pooh-poohed pedantic legal constraints on his actions: “He who saves his Country does not violate any Law.”
Mr Trump’s disdain for constitutional niceties is not purely rhetorical: he did, after all, try to steal the election of 2020. His thunderous first month back in office has done little to reassure those who fear the worst about his intentions. On day one Mr Trump issued an executive order decreeing that children born to illegal migrants should not be acknowledged as citizens, contradicting the 14th Amendment. Soon after he began a shock-and-awe campaign against the federal bureaucracy, led by Elon Musk, the world’s richest man. He has idled lots of civil servants, cancelled billions of dollars of government contracts and in effect closed USAID, America’s main foreign-aid agency.
Master and commander.
Mr Trump’s interpretation of his powers is so sweeping that some critics say America is already in a constitutional crisis. Opponents have challenged many of Mr Trump’s orders in court; judges have suspended several of them. Even greater battles loom. Mr Trump’s acolytes fervently believe that Article II gives the president the right to “impound” federal funds, or spend less than Congress has allocated for specific purposes. That would shrivel the legislature’s stature, reducing its “power of the purse” to a mere suggestive function. Will Mr Trump, in his determination to reshape America’s government, usurp the authority of Congress and the courts?
Tracking the president’s frenetic activity and assessing its significance is difficult—by design. Mr Trump issued 26 executive orders on his first day, three times as many as his predecessor, Joe Biden. In his first month he has churned out 72 orders, vastly exceeding the tally of all recent presidents.
Mr Trump also communicates in a madman style, making blustering threats of questionable seriousness. To take a few recent examples, does America really mean to impose strict tariffs on its neighbours? To occupy the Gaza Strip and evict Palestinians? To annex Greenland over the objections of Denmark? To make Canada the 51st state?
Chart: The Economist
Mr Trump stuns the world by throwing out lots of dramatic proposals in this offhand manner—“flooding the zone with shit” as Steve Bannon, once Mr Trump’s Svengali, liked to put it. Shrill reactions are pounced upon by Mr Trump and his allies as proof that his political enemies and the mainstream media are hysterical and biased. It is often hard to know how concerned to be.
Elections, as another of Mr Trump’s predecessors, Barack Obama, once said, have consequences.
Presidents have both the right and the means to implement lots of decisions, good or bad. One of Mr Trump’s worst affronts to the rule of law so far was also unquestionably legal: his pardon of more than 1,000 people who ransacked the Capitol on January 6th 2021 in a failed attempt to overturn his election loss. Similarly, Mr Trump has wide discretion to fire high-ranking government officials and to shift the focus of the Department of Justice away from corruption and towards immigration enforcement.
He has latitude to impose (and rescind) tariffs, to regulate migration to America and to reorient regulatory agencies towards his preferred policies. If he wants the bureaucracy to be “traumatically affected” by the hostility of his administration, as Russell Vought, the new head of the Office of Management and Budget (OMB) has promised, that may be damaging for the country, but it is the president’s prerogative.
Fast and furious.
Mr Trump’s early actions look particularly worrisome because the executive branch moves much faster than the legislative and judicial branches can respond. Mr Musk’s fondness for hyperbole further accentuates the discrepancy. Despite his talk of “feeding USAID into the wood chipper” and killing off the Consumer Financial Protection Bureau (CFPB), both agencies were created by Congress. The corollary is that only Congress can abolish them. The budgets Congress grants to federal agencies also have the force of law.
When Mr Trump’s administration violates such laws, the courts have been ordering it to remedy its transgressions. The birthright-citizenship order never went into effect. Another injunction prevented a broad spending freeze that Mr Trump had decreed. Federal workers, who are shielded by various union contracts and civil-service protections, have sued to stop some of Mr Trump’s attacks on the bureaucracy, scoring temporary reprieves.
Mr Musk’s representatives have been admonished by some judges to stay out of sensitive government systems, since they lack the required security clearances and privacy training, although others have declined to interfere. On February 13th a federal district judge ruled that the funding for USAID contractors was improperly cut off and must resume. On February 14th a judge ordered the same about the CFPB.
Such back and forth, although especially prevalent under Mr Trump, is common in all presidencies. What would be unprecedented would be for Mr Trump’s administration to flatly defy a court order. Thus far, Mr Trump has not crossed that Rubicon, protesting at adverse court rulings but complying with them.
Some critics maintain that Mr Trump’s administration is preparing to defy the courts, however. After it issued the memo ordering the spending freeze, Democratic-led states sued and obtained a similarly broad restraining order. The memo was duly rescinded, but some of the affected programmes remain unable to access their usual funds.
Democrats sued again; the administration insisted it was complying and blamed administrative backlogs for the delays. The judge in the case declared the administration in violation of his order on February 10th and instructed it to comply forthwith. But legal bickering of this sort is, again, reasonably common.
In another incident that prompted breathless commentary, a court barred Mr Musk’s deputies from accessing sensitive Treasury payment systems in an order written so broadly that it excluded the treasury secretary himself. That ruling provoked condemnation from several Republicans, including J.D. Vance, the vice-president, who thundered, “Judges aren’t allowed to control the executive’s legitimate power.”
Presumably Mr Vance, who has a law degree, understands that it is in fact judges who decide what the president’s legitimate power is. It is not hard to imagine MAGA types wilfully intimidating the courts, in the hope of putting more of the president’s agenda past them. But in this instance, at least, the judge modified the overly expansive order and Mr Trump’s administration insists that it is following it.
In fact, it is easy to see Mr Trump not as an outlier so much as the energetic heir to a series of imperial presidents. Mr Obama tried to “defer” immigration enforcement for millions of irregular migrants, succeeding with those who arrived as children but not their parents. Mr Biden in effect converted student loans to grants, spending almost $200bn that Congress had not earmarked for that purpose despite an adverse judgment from the Supreme Court.
What Mr Trump is attempting, however, is of far greater magnitude: the most aggressive aggrandisement of presidential power since Franklin Roosevelt in the throes of the Great Depression. In FDR’s first 100 days, Congress granted him immense powers to reorganise the national economy, including the authority to set prices. His executive orders were sweeping: one sought to confiscate most of the gold Americans owned.
Roosevelt’s power grab is instructive because it led to a tussle with the other two branches of government that lasted for years. The courts overturned much of Congress’s delegation of power to the executive as unconstitutional, forcing a rewriting of New Deal legislation. A Supreme Court precedent from Roosevelt’s era, Humphrey’s Executor v United States, put limits on the president’s ability to sack officials leading independent agencies like the Federal Trade Commission. When a frustrated Roosevelt proposed in 1937 to pack the court with additional justices, their opinions became much more accommodating of executive power—a tendency that has largely endured ever since.
The aggressive start to the second Trump administration also resembles the tenure of Richard Nixon, who thought that the mighty powers of the federal government ought to be used to correct cultural decadence (communism then, wokeness now) and exact revenge on the president’s enemies. Nixon clashed mightily with the bureaucracy and the other two branches of government over the extent of his power. Like Mr Trump, he asserted sweeping executive privilege to stave off investigations. He saw the Justice Department as an extension of his personal interests and was willing to sack official after official until he found one willing to do his bidding.
When Nixon refused to spend money that Congress had appropriated for environmental safeguards—asserting a wide power to “impound” funds—Congress retaliated by passing the Impoundment Control act of 1974, which places strict limits on the president’s ability to deviate from budgets enacted by Congress. The law remains in effect today. Indeed, it is one that the Government Accountability Office found Mr Trump to have violated when he withheld military assistance to Ukraine in 2019 (which prompted his first impeachment).
A sanity-preserving maxim among observers of Mr Trump is to pay attention not to what he says but to what he does. Better yet, pay attention not to what he says or does but to what the courts allow him to do. By this standard, Mr Trump’s first-month frenzy is likely to fall well short of a constitutional crisis. “Everything turns on whether they’re going to play ball with the federal courts,” says Jack Goldsmith, a professor at Harvard Law School (see By Invitation). “The courts are not going to agree with all their crazy theories, but they’ll agree with some of their theories.”
Although Mr Trump reshaped the Supreme Court during his first term by selecting a third of the justices, his most brazen policies are still unlikely to fare well in America’s highest tribunal. His executive order on birthright citizenship, for instance, is really a campaign slogan masquerading as a government policy. It is hard to imagine John Roberts, the conservative chief justice, or any of Mr Trump’s three appointees upending the plain meaning of a constitutional clause in place since 1868. Far more likely is that a rejection by the Court will prompt Republicans to campaign for a constitutional amendment to deprive children born to illegal migrants of citizenship, says Saikrishna Prakash, a professor of law at the University of Virginia. Polling suggests that this idea is broadly popular, and could be a useful rallying cry at midterm elections in 2026.
The Trump administration’s assertion that it can impound funds authorised by Congress is also expected to get short shrift. The conservative majority has consistently looked askance at expansions of presidential power at the expense of Congress. Although Congress has over the years voluntarily forfeited to the executive much of its authority to set tariffs and declare war, it has jealously defended the power of the purse. Clarence Thomas, the most conservative justice on the Court, has written many opinions over decades that uphold the separation of powers and defend Congress’s right to create and fund regulatory agencies like the CFPB.
Mr Trump may instead win a narrower victory: the right to run the federal government as he sees fit. “This Supreme Court is maximalist when it comes to the president’s power over the executive branch, but…it’s not friendly to the power of the administrative state in relation to Congress,” says Yuval Levin of the American Enterprise Institute.
The Supreme Court has been warming to the idea that the president exercises plenary authority within the executive branch (“unitary executive theory” in legalese). Trump v United States, a ruling issued last year that accorded the president an extremely wide presumption of immunity from prosecution for his official actions, stated, “Unlike anyone else, the president is a branch of government, and the Constitution vests in him sweeping powers and duties.”
In practice, that could mean that limitations on the president’s ability to fire federal officials, including quasi-independent regulators meant to be insulated from politics, are found unconstitutional. As Roosevelt wished a century ago, Humphrey’s Executor may soon be overturned, allowing Mr Trump to dismiss members of the Federal Trade Commission, the National Labour Relations Board and perhaps even the Federal Reserve.
If the court overturned another precedent, Morrison v Olson, it could give Mr Trump wide latitude to fire “inferior officers” (ordinary civil servants) for political reasons. Such authority, if wielded with enough alacrity, could quickly return the federal bureaucracy to the “spoils system” of political patronage that plagued it in the 19th century.
But if Mr Trump does secure the authority to conduct an indiscriminate purge of the civil service, or manages to achieve something close to that through a relentless barrage of executive orders, even if some are held up by the courts, he may not like the results. He is rapidly thinning the ranks. A strict hiring freeze is in place. Some 75,000 workers have accepted the administration’s mass buy-out offer (less than the White House had hoped for).
The threat to lay off all 200,000 federal workers still in their one- or two-year probationary periods, simply because they are the easiest to dismiss, may lead to further shrinkage. The bureaucracy could simply seize up, impeding things that Mr Trump likes as well as things he does not.
Mr Musk’s deputies are sleeping in offices in the hope of rapidly overhauling creaky IT systems designed decades ago in archaic programming languages. The risk of errors, leaks and crashes is high. Meanwhile, the painstaking effort to modernise the federal government may actually be set back.
“I’m not saying that in the end there won’t be some things they’ve done that are valuable, but they’re certainly not approaching the agencies in the same way USDS did,” says Jennifer Pahlka, who helped found the United States Digital Service (now rebranded the US DOGE Service). “They needed the agencies to work with them, not fight against them. Well, there’s going to be zero trust now.”
Tango and cash.
Mr Trump may also succeed in stirring resistance in Congress, whose Republican leaders have so far been meekly acquiescent. Most Republicans are sympathetic to the idea of radical cost-cutting and are perhaps pleased that Mr Musk is attracting flak for it instead of them. But if DOGE aims its axe at departments like defence or agriculture that steer hundreds of billions to their home districts, they may balk.
Lawmakers will need to participate if spending cuts of the magnitude that Mr Musk has promised, in the trillions of dollars, are to become reality. But they are aware that such cuts will probably prove unpopular. In fact, because Republicans are keen to extend expiring tax cuts enacted in Mr Trump’s first term, they are actually preparing to add trillions to the national debt instead of subtracting from it.
The budget resolution winding its way through the Republican-controlled House of Representatives would permit nearly $4trn of new debt over the coming decade, even after cutting over $1trn of spending on the environment, health care and education (all pointless, politically correct waste, of course).
No one can accuse Mr Trump of disguising what he aimed to do as president. All of his most controversial actions—the pardons of violent rioters, the purging of the deep state, the trade wars and the overtures to Russia—stem not from quiet conspiracies but from loud campaign promises.
H.L. Mencken, a misanthropic journalist, once wrote, “Democracy is the theory that the common people know what they want and deserve to get it good and hard.” And that is what is already happening with Mr Trump’s presidency, even in its first month. Only 47 more remain. ■
For this article in pdf, please click here:
This article appeared in the Briefing section of the print edition under the headline “Orders and chaos”
Illustration: Mark Harris
Comments