In a flurry of executive orders and proclamations this past week, President Donald Trump took decisive action on a range of significant issues including border enforcement, energy policy, birthright citizenship, and the TikTok ban, among others. While those Executive Orders cover disparate policy domains and legal topics, they are united in their reliance on broad assertions of inherent presidential power. On issue after issue, Trump claims that the Constitution directly empowers him to take certain actions, without any authorization by Congress and in the face of contrary statutes.
The idea that the Constitution directly confers certain powers on the President is, by itself, neither new nor controversial. Yet in many of these orders, Trump is not simply asserting an inherent constitutional power to act. He is claiming a power to act in ways that clearly conflict with existing federal statutes. That is, he is asserting a constitutional prerogative to ignore, disregard, or even openly violate federal laws that are inconsistent with his policy agenda.
Assertions of that general sort have been made in the past, and it is clear that the Constitution does confer on the President some exclusive powers that Congress may not regulate or restrict. Examples include the President’s power to veto proposed legislation, to grant pardons, to remove high-ranking executive officers he has appointed, and to recognize foreign governments. But these are the exceptions, not the rule. As Supreme Court Justice Amy Coney Barrett put it in her concurring opinion in the Trump immunity case, “the Constitution does not vest every exercise of executive power in the President’s sole discretion. … Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct.” Chief Justice John Roberts’ majority opinion in that case was sloppy and ill-reasoned in many respects, but neither he nor anyone else on the Court disagreed with Justice Barrett on this basic point. Indeed, Roberts relied heavily on Justice Robert Jackson’s concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer, the steel seizure case. There, Jackson famously emphasized that presidential assertions of power to contravene federal law “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
Trump’s recent executive orders would completely upend that equilibrium. He appears to be asserting a roving authority to override or simply ignore binding federal legislation whenever it interferes with his policy aims — regardless of whether the context is one of foreign affairs or national emergency. It is as though Trump is reprising his claim from his 2016 nomination acceptance speech that he alone can address the vital needs of the nation, but extending it to say that he alone has a mandate to suspend the law in pursuit of his goals.
The TikTok Ban
As a first example, consider TikTok. Last year, concerned that TikTok’s users’ personal information might be accessed and exploited by China, Congress passed a statute by overwhelming bipartisan majorities (352-65 in the House; 79-18 in the Senate) The law effectively required TikTok to cease operations in the United States by January 19, 2025 unless its parent company, ByteDance, sold TikTok to a non-Chinese entity. TikTok challenged the ban in federal court on First Amendment grounds, and the Supreme Court upheld the statute on Jan. 17, two days before it was to take full effect.
While the case was pending, Trump (who was not yet in office) filed a brief urging the Court to stay the effective date of the ban. Trump’s brief described the case as “present[ing] an unprecedented, novel, and difficult tension between free-speech rights on one side, and foreign policy and national-security concerns on the other,” and it claimed that Trump, as the incoming President, “has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions.” In addition, the brief described Trump as “one of the most powerful, prolific, and influential users of social media in history,” whose “commanding presence in this area” enables him to “evaluate TikTok’s importance as a unique medium for freedom of expression.” In sum, the brief asserted that “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.”
It was a remarkable filing, and not only for the way Trump’s lawyer (and now nominee to be Solicitor General) D. John Sauer embarrassed himself before the Court with his fawning references to his client’s “commanding presence” and “consummate” talents. More substantively (and concerningly), the brief was remarkable because it openly claimed that Trump’s policy preference to address the government’s national security concerns about TikTok without satisfying the statutory requirements were enough, by themselves, to warrant blocking the law. The statute itself gives the President (whether incumbent or incoming) no such authority. It does contain a provision allowing the President to delay the law’s implementation in certain narrowly defined circumstances, if a sale is about to be consummated. But those circumstances were not present and Trump did not invoke that authority. Rather, he simply stated that his interest in negotiating an alternative resolution to the issue was enough to warrant suspending the law. The president-elect’s policy preferences, in other words, trumped the law.
The argument evidently did not move the Court, which upheld the law without addressing Trump’s arguments. Yet shortly after he was sworn in, Trump rehearsed the same basic claims in an Executive Order purporting to suspend the statute’s operation for 75 days. Invoking the president’s “unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions,” the Order stated that Trump would fulfill those responsibilities by “pursuing a resolution that protects national security while saving a platform used by 170 million Americans.” The Order further claimed that the effective date of the statute (which had already passed a day before Trump was sworn in) “interferes with [the president’s] ability to assess [its] national security and foreign policy implications … before they take effect” and “with [his] ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.” To protect against such interference, the Order “instruct[ed] the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward.”
Executive actors responsible for enforcing federal law have long been understood to retain a measure of discretion in deciding when and against whom to enforce the law, whether civil or criminal. On occasion, presidential administrations have set certain enforcement priorities with across-the-board implications. The Obama administration did that in the immigration area, to howls of protest from conservatives in Congress and elsewhere who objected that this exercise in prosecutorial discretion had the unconstitutional effect of nullifying the law itself. But whatever one makes of Obama’s actions (about which one of us has written extensively), Trump’s go much further.
Trump’s TikTok Order does not simply direct the Attorney General not to enforce the statute for a period of time; it does everything it can to declare TikTok’s continued operation entirely lawful during that period, despite the fact that the company is now banned by the statute. After directing the Attorney General not to enforce the statute for 75 days, the Order provides that, “even after the expiration of the above-specified period, the Department of Justice shall not take any action to enforce the Act or impose any penalties against any entity for any conduct that occurred during the above-specified period or any period prior to the issuance of this order, including the period of time from January 19, 2025, to the signing of this order.” And even beyond that, it “order[s] the Attorney General to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order” (emphasis added).
This approach is so far afield of any legitimate version of presidential authority that Senator Tom Cotton (R-AR) recently reiterated, “The law that we passed last year is in effect. The law is the law.” And he commended major providers such as Google and Apple for following the law by no longer hosting TikTok, Trump’s Order notwithstanding.
Trump’s TikTok Order flouts Senator Cotton’s basic reminder that the law is the law. The Order is not merely a matter of exercising discretion about when to enforce a valid law. It is an attempt to suspend — even cancel — the law itself.
Birthright Citizenship
As a second example, consider Trump’s Executive Order redefining birthright citizenship. What’s important here is not simply whether Trump’s Order can be reconciled with the wording of the Fourteenth Amendment to the Constitution. In some respects, that’s a bright shiny object that distracts from the more significant usurpation of constitutional power at issue. As we explain below, an entire statutory regime provides for birthright citizenship. Trump’s Order appears to be an attempt to overrule that regime, sub silentio.
For years, Trump has argued that children born in the United States to undocumented noncitizens should not be citizens at birth. This position is a sharp departure from the constitutionally entrenched legal rule that has, since shortly after the Civil War, guaranteed citizenship to babies born within the United States on the basis of their place of birth, generally without regard to the citizenship or status of their parents. This longstanding feature of American law has been the basis for generations of immigrant families becoming a part of the citizenry.
In his birthright citizenship Executive Order, Trump announced that he is unilaterally changing those longstanding legal rules. Importantly, the Order goes much further than Trump’s past statements about who should be denied citizenship. It announces that children born in the United States are citizens only if at least one of their parents is either a U.S. citizen or green card holder. Far from denying citizenship only to the children of undocumented immigrants, the Order also excludes children born in the United States to lawful immigrants who do not yet have green cards — regardless of how many years or decades they have lived lawfully in the country. In short, the Order declares as law a radical new vision in which citizenship turns not on birth in U.S. territory, but instead on the citizenship or permanent residency status of the parents.
Press coverage has focused on the merits (or lack thereof) of the interpretation of the Fourteenth Amendment underlying Trump’s Order. The Fourteenth Amendment states unequivocally: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In his Order, Trump asserts that only children born to U.S. citizens or green card holders are “subject to the jurisdiction” of the United States. Putting aside the fact that this novel interpretation is totally at odds with how the Fourteenth Amendment has been understood for well over a century, the focus on Trump’s reading of the Constitution misses the fact that Congress itself legislated long ago to guarantee citizenship to people born in the United States. Trump is, in effect, asserting that he can ignore those federal statutes and decide for himself who counts as a U.S. citizen.
That is not how it works. Even if Trump were right in his narrow interpretation of who is constitutionally entitled to citizenship under the Fourteenth Amendment–and he is not–that would not provide a basis for invalidating or ignoring statutory grants of citizenship that reach more broadly. The Fourteenth Amendment merely creates a constitutional floor, prohibiting Congress from denying citizenship to people covered by the Amendment. But the Amendment leaves Congress with the unquestioned authority to grant citizenship at birth to others who do not fall within the Amendment’s guarantee. And Congress has done so repeatedly since the Amendment’s ratification—by, for example, granting birthright citizenship to persons born outside the country to U.S. citizen parents.
Most importantly for present purposes, a number of congressional statutes guarantee birthright citizenship to children whom Trump’s Order says are not citizens. Yet the Order directs the Secretary of State and other executive branch officials to treat those children as non-citizens, and to refuse them passports and other citizenship-affirming documents.
The administration might try to claim that those congressional statutes don’t mean what courts have long said they mean, and do not actually confer citizenship on children born in the United States to people other than U.S. citizens or green card holders. Trump’s Order alludes to this argument with respect to Congress’s general federal citizenship statute, 8 U.S.C. § 1401, stating that Congress’s use of the “subject to the jurisdiction” language in that statute “mirror[s]” the Fourteenth Amendment and is “consistent with” the President’s theory. But there are several problems with this approach. One is that the Supreme Court resoundingly declared, this past term, that the executive branch does not have authority to interpret statutes in contravention of the way they have been interpreted by the courts. And there can be no dispute that federal courts have, for generations, interpreted 8 U.S.C. § 1401 to grant citizenship to children whom Trump now says are not citizens (and will be denied citizenship-affirming documents by his administration).
Another problem is that there are other federal citizenship statutes that do not contain the “subject to the jurisdiction” language included in 8 U.S.C. § 1401. For example, in 1952 Congress passed a statute, still in force today, which states without qualification that “a person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth.” The statute similarly confers birthright citizenship on any “person born in Alaska on or after March 30, 1867, except a noncitizen Indian.” There is no avoiding the fact that Trump’s Order directly flouts existing statutory guarantees of citizenship like these.
But perhaps the biggest problem is that Trump’s Order nowhere even mentions these statutes, nor does it even begin to explain why the President is free to disregard Congress’s commands. This is not an oversight. Plaintiffs attacking Trump’s birthright citizenship Order have sued not only under the Fourteenth Amendment but also, citing these citizenship statutes, on the ground that “[t]he Executive Branch has no power to unilaterally amend or repeal an Act of Congress and no power to disobey a clear statutory command.” Yet despite clear notice of this obvious legal argument, the Department of Justice, defending Trump’s Order in a federal court filing last week, failed even to acknowledge the existence of congressional statutes governing who is guaranteed birthright citizenship in the United States.
When the president asserts authority to ignore a federal statute, they must make one of two arguments: they must argue that the statute was beyond Congress’s constitutional authority to enact, or they must argue that the statute interferes with an inherent and exclusive power conferred by the Constitution on the president. Here, Trump does neither. At some level this is perhaps unsurprising, given that Article I of the Constitution explicitly gives Congress power to decide who becomes a citizen and, consequently, no one has ever argued that the president has inherent, exclusive authority to decide who should receive U.S. citizenship. That makes Trump’s Order – and its implicit theory of presidential power – all the more stunning.
Border Enforcement
Alongside the birthright citizenship Order, Trump signed another half-dozen Orders and Proclamations concerning immigration policy and border enforcement, including: Guaranteeing The States Protection Against Invasion, Protecting the American People Against Invasion, Securing Our Borders, and Declaring a National Emergency at the Southern Border. Those measures provide yet more illustrations of the President’s view that he has the authority to disregard Congress’s statutory commands.
Consider Trump’s Proclamation “Guaranteeing the States Protection Against Invasion.” It opens by acknowledging that Congress has “created a complex and comprehensive Federal scheme” for screening immigrants in the Immigration and Nationality Act (INA), including a provision designed to prevent the admission of noncitizens who “pose threats to public health, safety and national security.” Yet the Proclamation then claims that when the President concludes that the INA’s provisions have become “ineffective in the border environment” because of the number of noncitizens arriving at the border, he is free to ignore Congress’s comprehensive rules and to make up his own scheme for screening immigrants seeking entry into the United States.
In one passage, the Proclamation argues that the INA itself authorizes the President’s actions, relying on authority Congress long ago delegated to Presidents to “suspend the entry” of any noncitizens whose entry “would be detrimental to the interests of the United States.” This statutory authority, rarely invoked historically, was made famous by Trump during his first term when he invoked it to support his ban on the entry of immigrants from a number of majority Muslim nations. This suspension authority is indeed extremely broad, as the Supreme Court concluded when it upheld Trump’s travel ban. But not even Trump’s own lawyers in that earlier litigation took the sweeping view adopted by this new Proclamation, which is that the suspension provision authorizes the President to supersede every other rule in the INA.
Perhaps for that reason, the Proclamation immediately moves on from the claim that Congress authorized the President’s actions, and asserts instead that the President has inherent authority under Article II of the Constitution (as well as under Article IV, section 4) to unilaterally block the physical entry of all noncitizens at the border – even if those actions clearly violate the immigration rules promulgated by Congress, so long as the President decides that conditions at the border have rendered Congress’s rules “ineffective.” In other words, whenever the President believes as a matter of policy that Congress’s comprehensive immigration code is not accomplishing what the President would like to see happening at the border, he has inherent constitutional authority to disregard Congress and declare his own immigration laws.
In the Invasion Proclamation, the President flexes that claimed authority to sweep away vast swaths of immigration law for any “aliens engaged in the invasion across the southern border.” While the Proclamation nowhere formally defines this category of noncitizens, its opening paragraphs strongly suggest that the category covers every noncitizen who arrives at the southern border—even those who lawfully present themselves for inspection at ports of entry. For those noncitizens, the President asserts authority to suspend the entirety of Congress’s Refugee Act of 1980—which guarantees immigrants fleeing persecution the legal right to seek asylum in the United States. It even purports to prohibit this category of noncitizens “from invoking [any] provisions of the INA that would permit their continued presence in the United States.” This euphemistic phrase masks the fact that the Proclamation is declaring the President’s power to suspend the operation of every law Congress has passed that affords a noncitizen a legal right to remain in the United States. Even if Congress has conferred such a right on a noncitizen and provided a process by which the noncitizen can exercise that right, the Proclamation declares that the President alone wields the power to decide which immigrants who have entered the United States across the southern border shall be permitted to remain.
A President Unbound by Law?
Trump is not the first president whose policy aims do not align with existing law. What is new is Trump’s wide-ranging willingness to ignore the law when it does not suit him. In the past, a presidential administration wishing to pursue new policies would typically look for ways to argue that those policies were authorized — or at least not prohibited — by Congress. Only as a last resort would an administration contend that the president had the inherent constitutional power to act even if it violated federal law. That approach reflects the reality that, over time, the courts have been very reluctant to uphold presidential action that conflicts with federal statutes (think: Jackson in Youngstown). Trump’s executive actions fly in the face of that reality.
At the same time, these orders do not acknowledge the full implications of their claims. Instead, they tend to cite various authorities stating that the President has some inherent power to act in a given area, as though that power necessarily includes the prerogative to ignore applicable statutes. For example, in his Presidential Proclamation “Guaranteeing the States Protection Against Invasion,” Trump quotes the Supreme Court’s 1950 decision in U.S. ex rel. Knauff v. Shaughnessy for the proposition that controlling entry into the country is a “‘fundamental act of sovereignty,’ which ‘stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.’” But the Court made that point in the course of rejecting a claim that Congress had violated the non-delegation doctrine by giving the President broad authority, in a statute enacted during World War II, to regulate entry into the country. Because the power to exclude noncitizens is shared by the legislative and executive branches, the Court reasoned, “Congress may in broad terms authorize the executive to exercise the power … for the best interests of the country during a time of national emergency.” The Court thus blessed a broad statutory delegation of authority to the President. It said nothing to suggest that the President had the power to ignore congressional commands in the area. Those are two entirely different things.
Fundamentally, many of Trump’s executive actions seem to depend on an assertion of necessity, or even emergency. The timing of the TikTok ban “interferes” with Trump’s ability to analyze the issue himself and with his desire to negotiate a solution of his own, so it is necessary to suspend the application of the law to give him time to act. Even more explicitly, the unlawful flow of undocumented persons (and illegal drugs) across the southern border constitutes an “invasion” that “create[s] substantial risks to public safety and security,” obliging the President to “act with urgency and strength to end the threats posed by an unsecured border.”
These claims may be rhetorically powerful, but as legal arguments they are wholly inadequate. As Justice Jackson famously explained in Youngstown, the framers of the Constitution “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” To ensure that the Constitution’s basic safeguards are not overridden by self-serving emergency declarations, the framers “made no express provision [in the Constitution] for exercise of extraordinary authority because of a crisis.” Put another way, the President’s inherent constitutional powers do not automatically expand just because he is prepared to declare an emergency, or a crisis, or a state of necessity.
This is not to say, of course, that the government can never muster extraordinary power to meet extraordinary situations. As Jackson explained, “In the practical working of our Government, we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency.”
Put another way, the Constitution does not empower the President to expand his own powers all by himself in an emergency, but Congress can grant him certain emergency powers by statute. And in a number of areas, it has. As we just noted, that was the basis of the Court accepting the President’s broad assertion of exclusion authority in Knauff: Congress had explicitly granted that power to the President “during the national emergency proclaimed May 27, 1941.” But Congress has given the President no authority to declare a “TikTok emergency” and suspend the operation of law, nor did it authorize the President to suspend the entire immigration code by declaring an “invasion” at the Southern border. And perhaps because not even the President can fathom what it would mean to declare a “citizenship emergency” that would justify him flouting Congress’s citizenship statutes, he doesn’t even bother to declare an emergency in that Order before ignoring those statutes.
This all points back to the same fundamental principle: The President’s lawful authority to act depends greatly on what Congress has done. If Trump believes that the current state of affairs constitutes an emergency of some kind, and if he means to invoke special authorities granted to him by Congress to address declared emergencies, that’s one thing. But if he wants to use his sense of an emergency to contravene federal law, that is something else altogether – and altogether unconstitutional. A number of Trump’s new executive actions seem not even to acknowledge the difference, let alone offer arguments justifying the latter.
Ultimately, Trump’s claims to a roving presidential prerogative to transcend the law have no place in our system of government. To the extent those claims are challenged in litigation, the courts should reject them. And more broadly, we should all be concerned that these executive actions may be the first steps in the direction of a dangerous version of extralegal presidential unilateralism.
– Adam Cox and Trevor Morrison, Published courtesy of Just Security.
