The Free Press
Not only has President Donald Trump attempted multiple sweeping policy changes in fewer than a third of the proverbial first 100 days of his presidency, he is also doing so almost entirely without new legislation. That might come later. For now, he is aggressively using executive orders—66 in total, as of February 13. And he is unleashing Elon Musk’s DOGE—an entity whose own legal status is innovative, murky, or a bit of both—on federal agencies.
Trump’s opponents are crying foul. With Republicans in control of both the legislative and executive branches, they have few options. The main one is to sue in federal courts, which they have done with at least some tentative success. At the top of the federal judiciary, of course, sits a Supreme Court dominated by conservatives, three of whom Trump appointed in his first term.
Has Trump bent or broken laws or the Constitution in his rush to “make America great again”? The Supreme Court’s ultimate answers could shape the course of his presidency—and either preserve or revamp the federal government as we know it.
If anyone knows how to think about the rule of law in post–vibe shift America it’s Jeffrey Rosen, president and CEO of the National Constitution Center, and a professor of law at George Washington University. Rosen’s latest book, The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America, made the New York Times bestseller list.
Charles Lane: Washington is somewhere between amazed and flabbergasted at Trump’s executive orders. What’s the best historical comparison to this first-month flurry of activity?
Jeffrey Rosen: The first-month flurry of executive orders by President Biden—who was using them to undo the executive orders of President Trump’s first term! In his ambition to remake the federal government, however, President Trump calls to mind President Andrew Jackson’s establishment of the “spoils system.” (The phrase comes from Senator William Marcy’s comment after Jackson’s election win in 1828: “To the victor belong the spoils.”) Claiming that John Quincy Adams’ federal civil service appointments were corrupt because they opposed his election, Jackson replaced them with his loyal supporters.
CL: The phrase constitutional crisis is getting a workout from President Trump’s critics. What is a constitutional crisis, strictly speaking, and to what extent does the situation now fit that definition?
JR: The most widely accepted definition of a constitutional crisis is when a president openly defies an unambiguous ruling by the Supreme Court. That would represent a breakdown in the rule of law, and it’s never happened before in American history. So far it hasn’t happened in the Trump administration.
CL: Trump’s critics also say that the condemnation he, Elon Musk, and Vice President J.D. Vance have aimed at judges who ruled against the administration indicates the kind of defiance that could lead to a constitutional crisis. Help us understand where to draw the line between appropriate and inappropriate presidential criticism of the courts.
JR: Presidents since Jefferson have insisted on their ability to interpret the Constitution in ways that differ from the courts. Lincoln said he disagreed with the reasoning of the Dred Scott decision and would only apply it to the parties in the case—both Lincoln and Congress refused to accept the Court’s conclusion that the Missouri Compromise was unconstitutional. Going beyond criticizing the reasoning of decisions and attacking individual judges as corrupt partisans simply because they rule against you violates longstanding norms and undermines the legitimacy of the courts. Some populist presidents, such as Theodore Roosevelt, came up to this line—attacking individual Supreme Court justices by name. As Chief Justice Roberts has suggested, it’s a bad precedent and it threatens the rule of law.
CL: It’s been said that Americans would be surprised to learn just what the Constitution actually permits their government to do. Of the Trump administration’s most controversial moves, which one has been heavily criticized despite being legal and constitutional?
JR: Perhaps the best example would be the Department of Justice’s decision to dismiss the indictment of New York mayor Eric Adams on corruption charges. It seems like a permissible exercise of the president’s inherent power to exercise prosecutorial discretion, even if it violated longstanding Department of Justice norms.
CL: Tell us more about why it’s permissible—and what norms it broke. The Free Press editorialized against the DOJ’s move and praised the prosecutor who defied it. Were we wrong?
JR: You weren’t wrong to editorialize against the order, which was highly irregular, outside the standard DOJ practices, and reeks of a quid pro quo. But that doesn’t mean it’s illegal. The president is the ultimate law enforcement officer and he has very broad discretion to bring prosecutions or not, acting through his subordinates. In theory, the judge presiding over the Adams case could find that a politically motivated decision not to prosecute affects the grand jury process, and refuse to dismiss the case, but courts are highly unlikely to second-guess the DOJ. A judge can’t force the DOJ to send prosecutors into court.
CL: What’s the most clearly lawless or constitutionally suspect step President Trump has taken?
JR: The Trump executive order the Supreme Court is most likely to strike down is the one involving birthright citizenship. The order purports to prohibit federal agencies from recognizing as citizens people born in the United States to parents who were not lawfully present in the country, or only temporarily legally present. This is clearly unconstitutional under well-established Supreme Court precedents.
CL: Tell us a little about the history and precedent that makes it such a no-brainer.
JR: The Fourteenth Amendment says “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.” As Akhil Amar and John Harrison argue at the National Constitution Center’s Interactive Constitution, the phrase subject to the jurisdiction thereof has been understood since the framing of the Fourteenth Amendment to exclude from birthright citizenship only the American-born children of foreign diplomats and various members of Indian tribes.
Four decades later, the Supreme Court ruled that the Fourteenth Amendment guarantees U.S. citizenship to anyone born in the United States. The decision came in the case of Wong Kim Ark, who was born in San Francisco to parents of Chinese descent. When he returned to the United States from a visit to China in 1895, immigration officials wouldn’t allow him to enter the country on the grounds that he was not a U.S. citizen. But the justices disagreed by a vote of 6–2. Unless the Supreme Court repudiates this longstanding precedent, the only way to change birthright citizenship is by a constitutional amendment.
CL: President Trump seems determined to fire leaders of independent federal agencies that have long enjoyed a certain protection under Supreme Court precedent dating back to the New Deal. What’s going on here? What is the potential for a Supreme Court case over the issue?
JR: In a 1935 case, Humphrey’s Executor [v. United States], the Supreme Court held that Congress could create independent agencies like the Federal Trade Commission and protect their members from being fired except for a specific cause such as poor job performance or wrongdoing. This decision is the foundation for the subsequent growth of independent regulatory bodies such as the Securities and Exchange Commission.
President Trump ignored these protections, however, in firing a member of the National Labor Relations Board and the head of the Office of Special Counsel, a whistleblower protection agency. Both are suing to keep their jobs. President Trump’s supporters hope the cases go to the Supreme Court and that the justices overturn Humphrey’s Executor under the “unitary executive theory.” Popular among conservatives who think the federal bureaucracy is out of control, the theory holds that all executive power is vested in the president by Article II of the Constitution, and therefore Congress can’t pass laws that constrain his power to remove executive branch officials. President Trump’s latest executive order asserting broad presidential control over all independent agencies may bring the issue squarely before the Supreme Court.
CL: What’s at stake? It would seem that abolishing independent agencies could return us to a pre–New Deal, pre–Progressive Era model in which practically the whole civil service turns over, on a partisan basis, after each election.
JR: It would take us right back to the age of Jackson! The movement for civil service reform was the main political reform movement of the second half of the nineteenth century. The Pendleton Act, passed in 1883, limited the ability of a newly elected president to clean house and stock the federal government with his political supporters. It established merit-based protections for federal employment. To strike down the independent agencies and eliminate protections for nonpartisan federal employees would return us to Jackson’s spoils system. But the federal government today has vastly larger responsibilities for regulating health, safety, the environment, and the financial system than it did when Jackson attacked the Bank of the United States—the deep state of his day.
CL: DOGE is pausing or suspending outlays in agencies such as USAID and the Department of Education. Does this risk violating any laws?
JR: Some of President Trump’s orders may violate the Impoundment Control Act of 1974, which Congress passed in the wake of President Nixon’s refusal to spend allocated funds. President Trump’s defenders argue that the Impoundment Control Act is unconstitutional and will urge the Supreme Court to overturn its decisions upholding it.
CL: Another objection is that Trump is not just making law where he lacks authority but is failing to enforce statutes Congress duly enacted. Is that an issue for him?
JR: Article II, Section 3 of the Constitution says the president “shall take Care that the Laws be faithfully executed.” But the Take Care Clause is hard to enforce, since the Supreme Court has given presidents broad discretion over decisions involving the enforcement of the laws. During the Obama administration, some states argued that President Obama violated the Take Care Clause by creating the DAPA program, which expanded the DACA, or “Dreamers” program, deferring the deportation of parents of unauthorized immigrants who came to the United States as children. The Supreme Court divided 4–4 in the case, United States v. Texas. Although President Trump’s decision not to enforce the Congressional ban on TikTok might be challenged under the Take Care Clause, Congress at the moment is not inclined to object. The same goes for his firing of about 17 inspectors general from various federal agencies, which he did without giving Congress the required 30 days’ notice. So far, Congress seems willing to let that slide.
The story of the JFK conspiracy theory isn’t just about a few hucksters red-pilling traumatized boomers. No. It’s also about how the government squandered its most precious asset: the trust of the American people. This week on Breaking History, Eli Lake examines the chain of events that led Donald Trump to declassify the remaining files on JFK’s assassination.