Robert A. Levy
This blog post updates and substantially enlarges my previous post on December 20, 2024.
1. When are executive orders valid and when are they invalid?
The ground rules are: First, the president can issue executive orders pursuant to a grant of authority from Congress. Second, executive orders are legitimate if they relate to the president’s role as commander-in-chief, or to his other core powers—especially in the areas of foreign policy and national security. Third, executive orders are valid when they deal with the internal workings of executive agencies. Beyond those three categories, executive orders affecting the rights and obligations of private parties may well be unconstitutional. They are not intended as a way for the executive branch to bypass Congress.
Justice Robert Jackson set out the constitutional framework in his concurring opinion in Youngstown Sheet & Tube v. Sawyer, the 1952 case that denied President Truman’s authority to seize the steel mills during the Korean War. Jackson offered this analysis: When the president acts pursuant to an express or implied authorization from Congress, “his authority is at its maximum.” When the president acts in the absence of either a congressional grant or denial of authority, “there is a zone of twilight in which he and Congress may have concurrent authority.” But when the president takes measures incompatible with the express or implied will of Congress, “his power is at its lowest.”
Ignoring that framework, Trump and his recent predecessors have unilaterally rewritten congressional enactments. Imagine if a future president were to annul environmental laws or financial regulations. Liberals would be up in arms. Or suppose a president alone implemented new regulations that Congress had considered and rejected. You’d expect conservatives to be on the warpath. Yet some observers believe that the Trump, Biden, and Obama presidencies overreached in both directions—ignoring existing laws and fashioning new ones.
2. What can Congress do to constrain presidential abuse of executive orders?
Here are two options if a president’s executive orders go too far: First, Congress could refuse to fund the activity. Second, Congress could pass legislation with guardrails limiting executive and administrative action. For example, the Congressional Review Act allows Congress to nullify selected agency acts within a specified time frame; and the REINS bill (Regulations from the Executive in Need of Scrutiny), if passed, would require Congress to approve all major administrative regulations.
Let’s examine a few of President Trump’s more controversial augmentations of executive power.
3. Can the president impose tariffs without congressional approval?
Recent laws give the president substantial authority over tariffs that protect industries harmed by global trade. But blanket, across-the-board tariffs—or those unrelated to trade policy, such as assessments meant to compensate for the ravages of fentanyl—might not hold up. Moreover, our trade agreement with Mexico and Canada (negotiated by Trump in 2020) provides for duty-free transactions among the three countries. So, any new tariffs imposed on our immediate neighbors will be subject to challenge if they’re more than a bargaining ploy.
4. Can the president unilaterally abrogate a treaty?
The Constitution tells us that presidents can “make Treaties, provided two thirds of the Senators present concur”; but it says nothing about termination or abrogation of treaties. Nor has the Supreme Court filled that gap. In 1979, President Carter withdrew from the Taiwan Mutual Defense Pact. The withdrawal was challenged in Goldwater v. Carter. But the court ruled that the dispute was a political question, not to be resolved by the judiciary. Perhaps if Congress had passed a resolution opposing termination of the treaty, the court would have rejected Carter’s unilateral action. In practice, however, presidents have repeatedly withdrawn from treaties without being successfully challenged.
Conceivably, a treaty could be implemented by statute rather than by Senate consent, in which case abrogation would require the repeal of the underlying law—unless, of course, the statute gave the president withdrawal discretion. At the other extreme, some treaty-like arrangements are structured as executive agreements, without Senate approval. Those agreements may be politically binding, but not legally binding. They could be canceled by the president alone.
5. Can the president bar transgenders from competing in female sports?
The Trump proposal to ban transgenders from female competition appears to enjoy substantial popular support. Department of Education regulations would apply to private schools, elementary through college, that receive federal funding. That raises multiple legal issues: (1) Is the federal government constitutionally authorized to regulate education? Remember, Trump proposed closing the DOE, in part because the 10th Amendment says that powers not enumerated in the Constitution are reserved to the states. (2) Can the president deny funding to private schools that don’t comply with his executive order? Probably not, if the denial is deemed to be coercive. (3) Does Title IX of the Civil Rights Act, which bars discrimination by sex—but not necessarily by sexual identification—allow differential treatment of transgender females? And finally (4) Does the president have the power by executive order, without congressional input, to direct DOE to implement the applicable regulations?
6. Can the president impound—i.e., refuse to spend—congressionally appropriated funds?
Trump has suggested that he would resurrect impoundment to control federal spending. But the Impoundment Control Act (1974) provides that rescission must be approved by both chambers within 45 days. Moreover, Congress is not even required to vote on rescission. In the past, legislators have ignored most presidential requests. Still, all recent presidents from Reagan forward have supported impoundment, as did many politicians across the ideological spectrum (e.g., John McCain, John Kerry, Al Gore, and Paul Ryan), as well as Elon Musk and Trump’s OMB pick, Russ Voight.
The Supreme Court hasn’t ruled on the constitutionality of the Impoundment Control Act, but in Train v. New York (1975), the court said that President Nixon could not refuse to fund an environmental project after Congress overrode his veto. And in 1998, the court held that the line-item veto was unconstitutional. It would have allowed the president to veto parts of a bill.
Most likely, the impoundment issue will be re-litigated. The court will have to consider, first, the Constitution’s Appropriations Clause, which sets a ceiling (but not a floor) on federal spending. It says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” That provision will be informed by separation of powers concerns and the president’s duty to faithfully execute the laws.
Arguably, the Court might view Trump’s proposed freeze or delay in spending differently than it would view impoundment, which is a refusal to spend. Unless a statute has a specific date by which expenditures must occur, the president might be justified in postponing the spending until he can certify that it complies with other laws and executive orders.
7. Is the Department of Government Efficiency (DOGE) legal?
At the outset, there’s the Elon Musk question. His access to confidential information may violate various privacy and national security regulations. Further, he’s been designated as a “special government employee,” which limits him to 135 workdays in any year. He’s also subject to conflict-of-interest laws that bar his involvement with government matters that could affect his personal interests (e.g., procurement and research contracts). And if he’s deemed (as the head of DOGE) to be an “Officer of the United States,” he would have to be confirmed by the Senate.
Then there’s DOGE itself—supposedly an advisory entity and therefore subject to the transparency rules of the Federal Advisory Committee Act. That Act also limits the delegation of authority to private parties. Additionally, DOGE may not be authorized to spend (much less impound) money without the approval of Congress.
8. Can the president close an agency?
President Trump plans to close USAID (the Agency for International Development) as well as the Department of Education. Can he do so? Generally, the president can close an agency under these conditions: (1) the agency was authorized by executive order, not by statute; or (2) the statute establishing the agency gives the president termination discretion. But if Congress has already appropriated funds to run the agency, then the president’s flexibility may be limited—unless Congress has also given the president the option not to spend the funds, or the president can legally impound the funds (a subject discussed above).
9. Can the president remove agency heads before their terms expire?
The Constitution covers the appointment of agency heads, but not removal. Until 1935, the president could fire subordinates freely. But then, in Humphreys Executor v. United States, the Supreme Court concluded that the Federal Trade Commission did not exercise executive power. Accordingly, if the president, as head of the executive branch, wanted to remove an FTC commissioner, he could do so only “for cause.” Again in 1988, the court upheld a congressionally-imposed, for-cause requirement. That case, Morrison v. Olson, was about terminating an independent counsel. The court found that limiting the president’s removal authority would not impede the operations of the executive branch. The president would still be able to faithfully execute the laws.
However, in a 2020 case, Seila Law v. Consumer Financial Protection Bureau, Chief Justice John Roberts held that a for-cause constraint on the president would violate the separation-of-powers doctrine because the director of the CFPB exercised substantial executive power. The ground rules, established in Seila, preclude a for-cause requirement except when (1) the president is firing an inferior officer, such as an independent counsel, who has limited duties and no policymaking or administrative authority, or (2) the agency is headed by a commission balanced along partisan lines, appointed to staggered terms, and performing mainly non-executive functions. (That guidepost would not, however, prevent the president from removing the chair of an agency from his leadership role, without removing him from the agency itself.)
10. Can the president exert control over so-called independent agencies?
A Trump executive order, published on February 18, imposes executive branch supervision over independent agencies—such as the SEC, FCC, FTC, NLRB, and CFPB—that are not technically characterized as “executive” even though they have law-enforcement authority. Trump asserts that he would not be able to “take Care that the Laws be faithfully executed,” as mandated by Article II of the Constitution, without supervising those agencies.
Under Trump’s order, independent agencies would have to submit their rulemaking proposals to OIRA (the Office of Information and Regulatory Affairs), which is part of the Office of Management and Budget. The rules would then be reviewed within the White House for conformity to the president’s agenda and cost-benefit constraints.
One of Trump’s stated goals is to increase accountability by substituting an elected official (the president) for unelected agency heads. That would represent a major change in governance—effectively reinstating the Framers’ original design that established three branches, which did not include independent agencies. The effect, if approved by the Supreme Court, would overrule the 1935 Humphrey’s Executor decision. And because many of the independent agencies also exercise legislative power, the longer-term impact might be to incentivize Congress to resume the lawmaking role that it has abdicated in favor of the administrative state.
At the root of Trump’s claim for expanded authority is the so-called unitary executive theory. It says the president wields exclusive control over the executive branch. A stronger version of the theory states that laws conferring independence on executive-type agencies or officials are unconstitutional. A moderated view, advocated by constitutional scholar Yuval Levin, is that “the president does command the executive branch, but the executive branch does not command our government.” Levin has nevertheless embraced the restoration of presidential authority over so-called independent agencies, which seems consistent with our tripartite constitutional plan.
11. Can the president fire government employees and bypass Civil Service requirements?
In January, Trump fired lower-level employees—FBI agents, Justice Department attorneys, and inspectors general—who are part of the executive branch, but may be protected by contract and Civil Service regulations. He also offered to buy out some of their contracts. Presumably, the buyouts would be funded by eliminating compensation that would otherwise be paid to the resigning employees. If, however, incremental funding were needed, that would require a congressional appropriation. Additionally, federal law calls for written reasons and 30-days notice to fire inspectors general.
On a related front, labor unions are challenging Trump’s Schedule F reform, which would remove Civil Service protection for selected high-ranking employees. But the president’s legal argument seems well-grounded: The Civil Service Reform Act of 1978 exempts positions “determined to be of a confidential, policy-determining, policy-making or policy-advocating character.”
12. Can the president make recess appointments without Senate approval?
Normally, high-level presidential appointments require Senate approval. But the Constitution allows short-term appointments for vacancies that arise when the Senate isn’t in session. Those appointments must, however, be confirmed by the Senate by the end of the succeeding session of Congress —i.e., within a maximum of two years—or else the appointments expire.
The Constitution also requires both Houses to approve any recess longer than three days. But if the two Houses disagree as to the “time of adjournment,” the Constitution allows the president to “adjourn [Congress] to such time as he shall think proper.” That’s what Trump said he would do if the Senate prolonged his confirmations. But, to block the president from making recess appointments, the Senate has occasionally held pro forma sessions, which are called to order, but no business is conducted. In NLRB v. Canning (2014), a unanimous Supreme Court held that those sessions are not recesses, because Congress retains the capacity to conduct business. Instead, a ten-day minimum break is necessary to declare a recess. In short, said the court, Congress itself determines when Congress is in session.
Of course, it’s perfectly normal for presidents to begin their terms on January 20 with most cabinet nominees not yet confirmed. The proper fix is for the president to make temporary appointments, not try to bypass the confirmation process by declaring a Senate recess. That’s why Congress enacted the Federal Vacancies Reform Act in 1998. It provides for interim appointees, who can serve up to 300 days. Persons serving as interim officials cannot be the ultimate nominee, but they can be another already-confirmed person, or a senior employee meeting certain criteria.
13. Can President Trump bar federal grantees and contractors from promoting DEI?
Trump has ordered that federal grants and contracts be withheld or canceled for entities that have implemented diversity, equity, and inclusion programs, on the ground that they violate antidiscrimination laws. Opponents of DEI contend that “diversity” is a code word for a representative mix of various identity groups—usually based on characteristics such as race, gender, or sexual orientation; “equity” seeks to impose equal outcomes (not just opportunities) for group members and non-members, independent of merit; and “inclusion” urges acceptance of group members, without regard to character, effort, or competence.
DEI programs, according to Trump, run afoul of the 14th Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act, which applies to recipients of federal funds. Ammunition for that argument comes from the recent Supreme Court affirmative action cases involving Harvard University and the University of North Carolina. The court held that race could not be used as an admissions criterion to achieve a diverse student body.
The counterargument, which was endorsed on February 20 by a federal judge in Maryland, is that Trump’s executive order “is textbook viewpoint-based discrimination”—i.e., suppression of speech based on the position taken by the speaker, in violation of the First Amendment. The judge temporarily halted enforcement of Trump’s executive order. He concluded not only that it threatened the expression of views supportive of DEI, but also that its lack of clarity violated Fifth Amendment rights to due process.
14. What are the limitations, if any, on the president’s pardon power?
Here are the guidelines: (1) The president can pardon federal criminal acts, not state crimes or civil liability. (2) A pardon cannot protect against future crimes—only past actions. (3) The pardon power extends to all “Offenses against the United States,” which doesn’t distinguish between those crimes already prosecuted and those not yet prosecuted. There are at least two open questions: First, can the president pardon himself? Probably not, but it’s unsettled. Second, with respect to preemptive pardons—for crimes that may have been committed but have not been charged—must the pardon clearly specify the conduct and time frame? Hunter Biden’s pardon, for example, specified the time period, but contained only a vague description of the crimes. Ditto for Nixon’s pardon, which applied to “all offenses against the United States which he … may have committed or taken part in” during a specified period. A Supreme Court pronouncement on the requisite degree of specificity would certainly be helpful.
15. What impact can President Trump have on the TikTok controversy?
In TikTok v. Garland (2025), the question for the Supreme Court was whether the Protecting Americans from Foreign Adversary Controlled Applications Act violated the First Amendment. The Act required TikTok’s Chinese parent, Byte Dance, to sell TikTok by January 19. Otherwise, TikTok’s U.S. operations would be banned. Two days before the deadline, the court upheld the law, 9–0, ruling that restrictions on TikTok were based on the ownership and privacy of the information, not its content. Accordingly, the justices concluded, the First Amendment issues were less compelling, and the law advanced an important government interest without excessively burdening speech—notwithstanding the right of 170 million US customers to post and have access to the information.
Prior to his inauguration, Trump had asked the Supremes to postpone the January 19 sale-or-ban deadline. He filed an amicus brief suggesting that he would be able to negotiate a settlement. The court declined Trump’s request; but then, post-inauguration, he ordered the US ban delayed for 75 days. That did not comply with the PAFACA statute, which allowed a delay only if sale negotiations were well underway. They were not. And the statute also required that any delay had to be ordered before the January 19 deadline. Plainly, Trump’s executive order flouted the law.
Yet, it appears as though the delay will not be challenged. Plaintiffs generally would not have legal standing to insist that the Justice Department enforce the TikTok ban. Discretionary enforcement choices are seldom subject to judicial review unless the statute provides a clear right of action for private parties. Nothing in the PAFACA Act creates such a right.
16. Can President Trump eliminate birthright citizenship for the children of illegal aliens?
The 14th Amendment states that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens.” The goal was to overturn the 1857 Dred Scott decision, which denied citizenship to slaves and their children. The Framers added the phrase “subject to the jurisdiction” to withhold citizenship from children of foreign diplomats and children of enemy forces occupying the United States. Neither group was deemed to be subject to our jurisdiction. But Congress surely intended that children of permanent legal residents would be citizens. Indeed, the Supreme Court said so in United States v. Wong Kim Ark (1898). That decision did not, however, resolve the status of temporary resident aliens, e.g., students and tourists, or illegal aliens.
Those persons are subject to our laws—at least while they’re here—and they can be convicted of violations. So, a natural reading of the phrase “subject to the jurisdiction” suggests that their children are citizens. But in 1868, when the 14th Amendment was ratified, there were no laws restricting immigration. So, birthright citizenship wasn’t about illegal aliens. More likely, “subject to the jurisdiction” meant primary allegiance to the United States as sovereign and principal lawgiver. On the other hand, some victims of the slave trade were brought here illegally. Their allegiance was surely questionable; yet their children were among the designated beneficiaries of birthright citizenship. Moreover, in Plyler v. Doe (1982)—involving illegals’ access to education—the Supreme Court said there was “no plausible distinction with respect to 14th Amendment ‘jurisdiction’ … between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
My sense of the constitutional question goes like this: If Congress were to deny citizenship to children of illegal and non-permanent aliens, a conservative Supreme Court might (but probably wouldn’t) uphold that law. It’s even less likely that the court would uphold a unilateral declaration by the president without parallel legislation.
17. Finally, what is the recourse if the president ignores a court order?
Although executive branch subordinates can be held in contempt, fined, or even disbarred, Justice Department policy bars prosecution of a sitting president. In the past, courts appointed prosecutors who were independent of the executive branch, e.g., Ken Starr, who investigated President Clinton’s involvement in the Whitewater case. That process was affirmed by the Supreme Court in Morrison v. Olson, but the underlying statute has since expired; it would have to be re-enacted. Other than impeachment, the remedy when a president ignores a court order is likely to be political rather than prosecutorial.
One concluding comment: The imperial presidency has indeed become a problem. But the problem pre-dates recent power grabs by Donald Trump. Nor does culpability rest exclusively with the Republican Party. After all, it was Joe Biden who attempted to bypass Congress and cancel roughly $400 billion in student loans. And it was Joe Biden who then tried to circumvent a Supreme Court decision by conjuring alternative means to the same end. And it was Joe Biden’s Department of Labor that unsuccessfully claimed unilateral authority to mandate vaccinations by all large private sector companies. In each case, Biden had no legislative assent. Nonetheless, he garnered enthusiastic backing from congressional Democrats—willingly condoning executive overreach when their man was in the White House. Of course, Republicans behaved in like manner.
So, the threshold problem is neither Biden nor Trump. It’s congressional abdication—the solution for which is Congress’s re-assertion of its authority as a co-equal branch, and reinvigoration of its legislative and oversight roles, as envisioned by the Framers.