From the first moment he returned to the Oval Office, President Donald Trump sent clear signals that lawlessness would be central to his governing philosophy. Before his first week ended, he had intentionally flouted several provisions of the law and constitutional limits on his authority.
He seems to be spoiling for a fight to see whether anyone will stop him. As ABC’s Monica Potts put it, “That is the point.”
One example occurred on Friday night when the president summarily dismissed at least twelve inspectors general in defiance of an Act of Congress laying out the procedures that must be followed before they can be removed.
Earlier, the president used his flurry of executive orders to show that he does not intend to respect laws limiting his authority. They include one concerning birthright citizenship and the “impoundment” of funds appropriated by Congress.
Separately, these examples would be troubling enough. But, together, they represent a stress test for our constitutional system
In fairness to the president, history shows that lawlessness is not new to the American presidency. And as Professor William Casto notes, “The idea that a leader sometimes should act lawlessly is centuries old…. When a nation’s very existence is at stake, self-preservation easily trumps legal technicalities.”
Casto reminds us that during the Civil War, President Abraham Lincoln suspended the writ of habeas corpus, a power assigned by the Constitution to Congress, not the president. Lincoln said: “’I will violate the Constitution, if necessary, to save the Union…’”
Other presidents followed Lincoln’s dictum, including Franklin Delano Roosevelt during World War II and George W. Bust after 9/11. However, Casto says that it would be “disconcerting” if a president violated the law as a matter of convenience.
Disconcerting seems a mild word to describe what happened in week one of the Trump administration. Unprecedented and dangerous seem a better way to describe a situation where lawlessness becomes a routine governance tool.
Yet that is what we saw in President Trump’s first week.
On the first day of his second term, the president issued an executive order attacking a provision of the 14th Amendment guaranteeing citizenship to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof….”
Despite the clear language of that amendment, the president asserted that the “privilege of United States citizenship does not automatically extend to persons born in the United States” if “that person’s mother was unlawfully present in the United States” and “the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
He directed government agencies to “no longer issue citizenship documentation to babies born in the United States to parents who lack legal status.” He did so even though the question of whether the children of people not lawfully in the United States became citizens at birth was resolved more than 100 years ago.
In United States v. Wong Kim Ark, the Supreme Court held that “a child born in the U.S. to Chinese parents—who at that time were prohibited from becoming U.S. citizens—was a citizen under the 14th Amendment.” As Justice Horace Gray explained, “Whatever considerations…might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment.”
The Amendment, Gray said, “in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
On Thursday, a federal judge appointed by Ronald Reagan four decades ago agreed with Gray and temporarily blocked President Trump’s executive order. As the New York Times notes, Judge John C. Coughenour called the attack on birthright citizenship “a blatantly unconstitutional order….”
He went on to say, “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.” But Coughenour did not acknowledge that issuing such an order and boggling the mind was the very purpose of what Trump did.
The same day Trump ignored the 14th Amendment and what the Supreme Court said about it, he openly flouted an act of Congress when he halted the disbursement of funds under the Inflation Reduction Act and the Infrastructure Investment and Jobs Act “until officials ‘have determined that such disbursements are consistent with’ the administration’s goals on increasing energy production….”
Politico explains that Trump “boldly defi[ed] the will of Congress” expressed clearly in the fifty-year-old Impoundment Control Act. That act says, “Presidents can only use the impoundment power by submitting requests to Congress about funds they don’t want to disburse.”
One year after that act became law, the Supreme Court decided unanimously that the president does not have unilateral authority to impound funds. Only Congress has the power to appropriate and direct the expenditure of funds by the federal government. The president and the executive branch are responsible for following those directions.
Again, the law and the president’s intention to defy it are clear.
That brings us to the Friday night firing of the inspectors general. The New York Times calls them “internal watchdogs who monitor federal agencies” and says their firing “capp[ed] a week of dramatic shake-ups of the federal bureaucracy focused on loyalty to the president.”
But more is at stake than just a desire for loyalty. Here again, Trump knowingly defied the law.
Under the Inspector General Act of 1978, IGs can be removed only if the president “communicate[s] in writing” the reasons for any such removal “not later than 30 days before the removal.” This is no mere procedural nicety.
The president simply ignored that requirement.
On Sunday, Senator Adam Schiff, D-Calif., accused the president of breaking the law and suggested that the president did so “to remove anyone that’s going to call the public attention to his malfeasance.”
Senate Minority Leader Chuck Schumer agreed with Schiff’s assessment. “These dismissals,” Schumer said, “are possibly in violation of federal law, which requires Congress to have 30 day notice requirement of any intent to fire inspectors general.”
American Oversight, a nonpartisan organization committed to “advance[ing] truth, accountability, and democracy, condemned the firing of the inspectors general as a “clear violation of the law and a direct attack on the independence and integrity of the offices tasked with holding the federal government accountable.”
It added that the 1978 Inspector General Act, which governs the hiring and removal of IGs, was “amended in 2022 to, among other things, require substantive explanation, including case-specific reasons for the removal or transfer of an Inspector General.”
But neither clearly stated notification requirements nor congressional authority nor the clear language of the constitution seem to matter to the president.
Together, the unconstitutional attack on birthright citizenship, the impoundment of funds, and defiance of an act of Congress governing the removal of IGs, send a powerful message. Lawlessness will be a central plank of Trump’s governing philosophy.
The Brennan Center got it right when it said: “Every new president swears to uphold the Constitution. Only minutes after taking that oath, President Trump violated it—flagrantly.”
Because our Founders expected that each branch of government would jealously guard their constitutional prerogatives, it is the responsibility of the Republican majority in Congress and, ultimately, the Supreme Court to push back.
Trump’s first week was intended to test their willingness to do so. If they fail, as I expect they will, their failure will open ever wider the door to authoritarianism.
