As the nation shudders under a polar vortex, it is perhaps fitting that the U.S. courts and president are squaring-off in a freeze-out match.
President Trump has moved swiftly, using executive orders to freeze federal programs, agencies and workers in preparation for their evisceration, while the lower courts countered by freezing the implementation of many of the president’s actions pending full judicial processes.
Executive orders date back to our first president, George Washington. On June 8, 1789, Washington sent a request for information to his department heads asking what exactly it was that they did — their jurisdictions, responsibilities and plans.
It was the most direct way for the first chief executive of the newly established government to get a handle on his own responsibilities in guiding, directing and overseeing what would one day become a sprawling bureaucracy. Washington only had four Cabinet departments under him: State, Treasury, War and Justice. Today there are 15 departments, with more than 3 million employees.
Not all presidential orders have been as benign as Washington’s. President Abraham Lincoln got into hot water by suspending habeas corpus rights, conscripting troops without a declaration of war, and spending money Congress had not appropriated. He explained his actions in a letter to Congress later, arguing forcefully that the alternative was the destruction of the union. Congress was sufficiently mollified and retroactively ratified his actions by appropriating the necessary funds.
Lincoln’s “Emancipation Proclamation” freeing the slaves was issued on Jan. 1, 1863, while the war was still raging. It was in the form of an executive order, but it was not challenged in court.
Probably the most controversial executive order was issued by President Harry S. Truman during the Korean War when he attempted to nationalize U.S. steel mills. The Supreme Court struck down his ambitious overreach as unconstitutional.
More recent clashes between presidents and the courts occurred with President Richard Nixon’s wiretapping and related offenses during the Watergate scandal. President George W. Bush faced controversy during the Iraq War regarding torture of Iraqi citizens and surveillance of Americans. President Joe Biden’s attempt to forgive of student loan debts also put him on the wrong side of a Supreme Court majority.
Many executive orders in recent times were issued for national security reasons during wars or in the wake of terrorist attacks. They did not always sit well with the courts. Trump’s ordersare more scattershot and cover both domestic and foreign matters. Still, the flurry of executive orders that gushed from the White House during Trump’s first few weeks in office took almost everyone aback by their swift execution.
What is puzzling is that these orders were not accompanied by detailed statutory or constitutional justification as courts have insisted on in the past. You cannot fabricate an executive order out of whole cloth. You first need the cloth. Yet there is a simple justification upon which the administration is relying to avoid complex justifications rooted in law or the Constitution, and that is called the “unitary executive theory.” That theory holds that the president has absolute authority over the executive branch. As the president put it bluntly on social media last week, “He who saves his Country does not violate any Law.”
Those actions include the firing of federal workers who are supposedly protected by civil service laws, withholding funds appropriated by Congress, and even doing away with so-called “independent agencies” that were established by Congress to shield them from political interference.
The administration also argues that the Impoundment Control Act of 1974 is unconstitutional because it forces the president, after 45 days, to release funds being withheld unless Congress agrees to cancel them. Trump says they can be rescinded indefinitely.
There is no question that the administration is setting out to do what it promised to do during the campaign — shrink the size and scope of government and eliminate many federal jobs. He has also set about demolishing those “woke” social constructs erected in recent years.
It will be interesting to see how all of the administration’s arguments and efforts play out in the courts. The administration’s calculated approach is the closest it can get to openly defying court orders without being in clear contempt or inviting impeachment by Congress.
Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee in 1995. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).
