In the first two weeks of President Donald J. Trump’s second term, among an avalanche of other executive orders and actions, three stood out not only for their moral and practical implications but because, exercised by unilateral decree, they assert executive power unconstrained by the checks and balances of our constitutional system.
1. Mr. Trump issued an executive order purporting to deny birthright citizenship to children whose parents are not citizens themselves or do not have lawful permanent residency. That order was swiftly put on hold by a federal district court, with the judge, who was appointed by Ronald Reagan, calling it “blatantly unconstitutional.” During the hearing, the judge asked, “Where were the lawyers when this decision was being made?”
2. Mr. Trump also fired 18 inspectors general, ignoring the legal requirement to provide 30 days notice and specific reasoning for each dismissal to Congress. (He also took aim at inspectors general in his first term.) Senators Chuck Grassley and Dick Durbin, the chair and ranking member of the Judiciary Committee, sent a letter demanding further information and compliance with the requirement for individual explanations of the firings, even as they acknowledged the president’s ability to fire such officials for cause. While the legality of the firings remains in question, the inspectors general are locked out of their email accounts and offices and unable to discharge their duties.
3. Finally, on Jan. 27, the acting director of Mr. Trump’s Office of Management and Budget published a memo directing all federal agencies to “temporarily pause” all activities related to federal grants that might be affected by recent executive orders “including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.”
The confusion following this memo was notable, indicating that the administration itself did not fully understand the effects of its directives. The most significant example of confusion was an outage on the online portals through which states receive federal funding for Medicaid, which resulted in the O.M.B. issuing a clarification that Medicaid was not frozen. Later, the entire memo was temporarily blocked by a federal judge in a suit brought by nonprofit groups, after which it was rescinded by the O.M.B.
In the maelstrom of news from the opening days of the Trump administration, these three actions may not be the most morally costly. That distinction likely goes to the mass deportation effort, which is largely within established executive authority and has already kindled fear among communities across the country.
But these three examples, even though one has been put on legal hold and one has been rescinded, pose a different kind of challenge for American politics. In the case of immigration, the debate between Americans is over policy and values: How welcoming and open should the country be and to whom? Mr. Trump’s assertion of unfettered executive power, however, raises questions not only of policy but of fundamental constitutional norms. It is unclear whether he and his advisers accept that the constraint of executive power, and its balance with countervailing powers and norms, is good and necessary at all.
Each of these examples highlights different aspects of Mr. Trump’s alarming disdain for restrictions on his authority. In purporting to end birthright citizenship, Mr. Trump claims to summarily reinterpret the 14th Amendment, contradicting both congressionally enacted legislation and Supreme Court precedent more than a century old.
While he has not yet explained the firing of the inspectors general, Mr. Trump is likely asserting some form of “unitary executive” theory. Under extreme versions of this theory, procedural limits on the management of the executive branch—which previous presidents signed into law— are null and void, or at least only apply at the discretion of the president.
The funding freeze, as originally described in the O.M.B. memo, claims executive authority to refuse to disburse appropriated funds, saying that all funding must be evaluated “consistent with the law and the President’s priorities.” This amounts to an infringement of Congress’s constitutional power of the purse, as well as an implicit rejection of the 1974 Impoundment Control Act, setting up presidential priorities alongside legislative text as a parallel criterion for federal spending. Additionally, the memo’s broad and vague campaign-style language about “woke gender ideology” and the “green new deal” make it clear that Mr. Trump is not engaging in a dispute with Congress about the proper interpretation of legislative terms, but rather claiming that his ideological commitments should determine how the government spends the funds Congress has appropriated.
The editors of America have a long history of raising concerns about efforts “to expand the power of the presidency beyond its constitutional limits,” as we said in a 2008 editorial about George W. Bush. In 2016, at the end of Barack Obama’s two terms, we criticized his continued use of many of the expansive executive powers that he had spoken out against as a senator. After Mr. Trump’s first impeachment in 2020—triggered by his refusal to spend funds Congress had appropriated for aid to Ukraine—we said that the Madisonian design of ambition counteracting ambition between the branches of government had failed, as “institutional self-interest was insufficient to overcome partisan self-interest.”
The letter requesting proper notice about the firings of the inspectors general from Senators Grassley and Durbin, which Mr. Trump has not yet complied with, may be a glimmer of hope that congressional self-interest will reawaken. It should also serve as a reminder that pushback against Mr. Trump’s overreach requires more than just vigorous denunciation, which can be dismissed as merely political opposition to his agenda. Opportunities for bipartisan cooperation in defense of basic norms should be embraced.
The Catholic Church, which is itself monarchical in many respects and acknowledges the legitimacy of many different government structures, nevertheless recognizes the importance of checks on political authority—and has spoken in magisterial teaching on the question. In “Gaudium et Spes,” the Second Vatican Council taught that “If the political community is not to be torn apart while everyone follows his own opinion, there must be an authority to direct the energies of all citizens toward the common good, not in a mechanical or despotic fashion, but by acting above all as a moral force which appeals to each one’s freedom and sense of responsibility” (No. 74). In the United States, that authority and moral force has been committed not to a single body or person but to the structure of checks and balances embedded in our constitutional design and refined over the history of the republic.
Those constitutional norms protect the rights and freedom of all, including those without political power, and promote the common welfare, a vision broader than that promised by a populist leader pledging to restore an illusory golden age. In order for the United States to remain “a government of laws, not of men,” all officials entrusted with elected authority must recognize the necessity and justice of constraints on their own power. Likewise, they must work together to reinforce such constraints against those who do not.
