Trump’s Assertive Presidency: Balancing Power and Checks

Welcome to the “try and stop me” presidency.

Donald Trump, cheered on by compliant Republicans in Congress and confident in the ideological leanings of the Supreme Court, is using his first days in office to impose sweeping changes to the way government works and overwhelm traditional institutional checks on presidential power.

Trump’s Assertion of Power

Detractors are trying to keep pace by filing a wave of lawsuits aimed at blocking some of Trump’s most far-reaching orders. Those efforts are raising the prospect of a clash that could define Trump’s second term: How would a president who is deploying maximal executive power respond if a court — perhaps the Supreme Court — tells him no?

Nowhere is Trump’s assertion of power more brazen than in his administration’s blanket Monday night order to halt federal aid spending, save for Medicare and Social Security. The move is both an affront to Congress’ constitutional power of the purse and a direct challenge to a 50-year-old federal law meant to ensure congressionally authorized funds go out the door.

Trump has also pushed legal boundaries, or blown through them completely, with his executive order seeking to end birthright citizenship, his purge of in-house government watchdogs and his decision not to enforce a law mandating the sale of TikTok.

“Trump and others think they have a mandate to be bulls in a china shop,” said Jed Shugerman, a legal expert and presidential historian from Boston University. “This time they’ve had years to think about going bold and also not worrying about the courts. There’s more flagrant disregard of what the Roberts court might do, and there’s a lot more chutzpah thinking that the Roberts court might wind up capitulating.”

Judicial Challenges

In short, Trump’s first week in office was marked by an implicit bet that his opponents can’t stand in his way — and that the judiciary won’t.

So far, two courts have stood in his way, at least temporarily.

On Tuesday — just three minutes before Trump’s spending freeze was set to take effect — a federal district judge in Washington, D.C., blocked the administration from implementing it for the next six days, portending a furious week of further litigation. Notably, the Justice Department argued that it didn’t believe U.S. District Judge Loren AliKhan had the authority to issue the short-term reprieve.

Last week, a judge in Washington state put a nationwide hold on Trump’s Day One executive order seeking to impose limits on the Constitution’s grant of citizenship to anyone born on American soil.

But those temporary orders are mere preludes in the litigation that will proceed on both issues. And that litigation may rush up to the Supreme Court on an emergency basis in the coming months, or even weeks.

Impoundment Control Act

In the fight over the spending freeze, the central question will be whether Trump can persuade five justices to agree that presidents have a constitutional prerogative to “impound” — or refuse to spend — money that Congress has appropriated. In the Impoundment Control Act of 1974, Congress provided a framework for presidents to seek to rescind certain funds. But outside that framework — which Trump’s Monday night freeze does not even attempt to comply with — courts have never recognized a general impoundment power for presidents.

This is not Trump’s first brush with the Impoundment Control Act. The law was at the heart of his impeachment in 2020 when he halted aid to Ukraine for weeks amid a demand that the country’s new leader investigate the Biden family. Since then, Trump has insisted the law itself is unconstitutional, and he’s now acting on that declaration in unprecedented fashion. By the time the courts catch up — even if they rule the move to be illegal — debilitating cuts could ripple through federal aid programs.

Challenges and Response

Republicans, meanwhile, are largely shrugging and pointing to Trump’s claimed mandate to “shake up” government, though some suggested there might be merit to the separation of powers concerns raised by Trump’s detractors.

Trump has similarly defied the letter of the law in his decision to terminate more than a dozen inspectors general, who are charged with monitoring waste, fraud and abuse within the government. A 2022 law signed by President Joe Biden requires the administration to give Congress a 30-day heads up before firing inspectors general and offer a detailed explanation. Trump did neither.

Senate Judiciary Chair Chuck Grassley (R-Iowa), who berated Biden for following the inspector general law but not providing a detailed enough explanation for removing a single inspector general, issued a gentle scolding of Trump for the expansive firings. But by the next morning, he was heaping social media praise on the new president. On Tuesday, he signed a letter with his Democratic counterpart, Sen. Dick Durbin, calling on Trump to “immediately” come into compliance with the law.

So far, no legal challenges to the firings have emerged, despite an initial claim by one of the first watchdogs that the removals were illegal.

Likewise, Trump has run roughshod over a federal law requiring the government to effectively shut down TikTok over national security concerns related to its Chinese ownership. The Supreme Court ruled earlier this month that the law is constitutional, sweeping away last-ditch challenges, but Trump has yet to enforce it despite clear deadlines.

Trump has also asserted his power in other extraordinary ways, from his blanket pardon of 1,500 people who stormed the Capitol on Jan. 6, 2021, to his acting attorney general’s summary firing of Justice Department officials who worked on criminal investigations of his conduct.

In each case, those decisions have pushed on the outer boundaries of executive power, with adversaries vowing legal action.