Donald Trump’s spate of executive orders include many aimed at expanding his presidential powers in areas that pose threats to the rule of law and democratic norms in the US, say legal experts.
Trump’s orders include the abrupt firing of 17 agency watchdogs called inspectors general without giving Congress the required 30 days’ notice, the rejection of birthright citizenship for children of undocumented immigrants, which is guaranteed by the 14th amendment, and pardons for more than 1,500 people convicted for their roles in the January 6 Capitol insurrection.
Congressional Republicans have offered scant criticism of Trump’s power plays, but Democrats have accelerated their attacks on Trump’s moves: about two dozen Democratic state attorneys general have filed lawsuits, and federal court judges have temporarily halted two of Trump’s more extremist moves.
The Guardian has learned that a group of inspectors general also are expected to file a lawsuit challenging their dismissals by Trump and are in talks with law firms to that end, according to a source familiar with the matter.
Federal judges have backed separate lawsuits by state attorneys general and civil rights groups halting Trump’s efforts to nullify birthright citizenship for children of undocumented immigrants born in the US, which was a facet of his blitz to deport undocumented immigrants.
Similarly, after the White House budget office issued a directive that could have briefly blocked $3tn in federal funds from being sent to numerous state and federal programs, 23 state attorneys general persuaded two federal judges to temporarily stop the measure from taking effect.
Further, congressional Democrats and labor unions are challenging some draconian cost-cutting moves that Elon Musk – Trump’s biggest donor and the world’s richest man – is pursuing at the so-called “department of government efficiency” (Doge), which is facing fire for its gutting of the US Agency for International Development.
Legal experts say Trump’s firehose of executive actions is aimed at enhancing presidential powers and may be intended to get some cases before the supreme court in hopes that the conservative majority will rule in favor of his expansive views of executive power.
“At bottom, President Trump’s opening salvo of executive orders is consistent with his administration’s view that the executive branch is not co-equal but predominates over all three branches,” the ex-federal judge John Jones, who now is president of Dickinson College, said. “Likewise, his administration has chosen to simply ignore laws it deems unconstitutional.
“I believe those who have standing, such as state attorneys general, will increasingly challenge these orders in court. And it is my hope that the judiciary, which is constitutionally co-equal, will serve as a bulwark and prevent a further deterioration of the rule of law.”
That view is echoed by Arizona’s Democratic attorney general, Kris Mayes, who sees state attorneys general playing a key role in halting some of Trump’s moves.
“We will not hesitate to challenge actions that violate the constitution or threaten fundamental rights – and we will win,” Mayes said.
Former justice department officials also offer scathing criticism of Trump’s rapid-fire moves to expand his authority. “Trump is determined to maximize the power of the presidency,” said Ty Cobb, a former federal prosecutor who was a White House counsel during Trump’s first term.
“He believes he’s omnipotent and that anything he does is beyond reproach. That’s clearly not the case. He does not have the ability to amend the constitution through executive orders.”
Cobb predicts that “nothing is going to slow Trump down. He’s going to test the limits of his powers until he leaves office.”
Many of Trump’s executive orders were presaged in his election campaign, but their volume and speed look designed to swamp political foes and echo the ex-Trump strategist Steve Bannon’s call to “flood the zone” to overwhelm Democratic opposition and media attacks.
Trump has defended his firings of the inspectors general by falsely calling them “standard” and a “very common thing to do”. Likewise, Trump has tried to defend his sweeping pardons by claiming baselessly that those convicted were victims of a “weaponized” justice department, which perpetrated a “grave national injustice”.
On another battlefront at the Department of Justice, about a dozen senior lawyers who worked under special counsel Jack Smith, who charged Trump with seeking to illegally overturn his 2020 loss to Joe Biden, have been axed, raising alarms about how justice department leaders seem in sync with Trump’s threats of exacting revenge against his political foes.
Former federal prosecutors and legal experts say some of Trump’s executive moves are undermining the rule of law, but fit with his authoritarian instincts and plans to expand his executive powers.
“It seems that Trump is pushing and at times exceeding the limits of his authority in an effort to move the legal lines,” said Barbara McQuade, a former eastern Michigan federal prosecutor who now teaches law at the University of Michigan.
“By ignoring legal requirements before firing inspectors general and career prosecutors, Trump is inviting lawsuits, which, in turn, gives him an opportunity to challenge the statutes that limit the president’s authority to fire executive branch employees.”
In response to some of Trump’s dubious power grabs, Senate Democrats and one Republican member have stepped up their challenges to Trump’s moves to widen his powers.
The two top senators on the judiciary committee, Democrat Dick Durbin and Republican Chuck Grassley, last Tuesday rebuked Trump in a joint letter for his sudden firing of the 17 inspectors general, who are tasked with ferreting out waste, fraud and abuse in federal agencies.
“Congress was not provided the legally required 30-day notice and case-specific reasons for removal, as required by law. Accordingly, we request that you provide that information immediately,” Grassley and Durbin wrote.
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“While IGs aren’t immune from committing acts requiring their removal, and they can be removed by the president, the law must be followed.”
The letter stressed that Congress needed to be given “sufficient facts and details to assure Congress and the public that the termination is due to real concerns about the Inspector General’s ability to carry out their mission”.
Just before the letter was sent, the White House press secretary, Karoline Leavitt, strained to justify Trump’s mass firings of inspectors general, telling reporters: “He is the executive of the executive branch, and therefore he has the power to fire anyone within the executive branch that he wishes to.”
The Democratic senator Elizabeth Warren of Massachusetts, meanwhile, is sounding alarms about threats posed by Musk’s Doge, which, in its cost-cutting zeal, has gained access to treasury department systems that send out tax refunds and social security checks.
“Instead of cutting costs for working families, Donald Trump and Elon Musk are screwing with systems that get you your tax refund and your social security check,” Warren said. “This is not business as usual. We are living in a nightmare created by Donald Trump, and I will do everything in my power to fight back.”
Two large federal employee unions on Monday filed a lawsuit in a federal court against the government charging that sharing treasury payment information with Doge violates the 1974 Privacy Act.
Some ex-prosecutors say Trump’s modus operandi is simply to strengthen his executive authority and blunt opposition without concern for legal niceties.
“Trump and his team clearly have the project of taking control of the federal government – not in the normal way of most transitions but in the intentional way of eliminating opposition and bending the bureaucracy to his will,” the former federal prosecutor Paul Rosenzweig said.
“Trump also has the intent of neutering opposition – both from independent watchdogs like the IGs and from the general populace.”
Trump’s actions could well lead to test cases going to the supreme court, which, given the court’s six-to-three conservative majority, might rule in the president’s favor, say legal experts.
Critics note that the court handed Trump a huge win last year with a controversial and sweeping ruling that presidents are largely exempt from being charged for any “official” actions during their time in office.
“Given this supreme court’s recent views of executive power, Trump likely hopes that he can expand the powers of the presidency,” McQuade said.
Rosenzweig also stressed that some of Trump’s moves, such as his firing the chair of the National Labor Relations Board, “are clearly intended to create test cases and get supreme court approval for his excess”.
But Trump’s crusade to overturn limits on his power with executive orders is likely to face more obstacles ahead.
“It’s troublingly easy to roll out a series of executive orders with outrageous claims of executive powers,” said the Columbia Law professor and former federal prosecutor Daniel Richman.
“But now the action will shift in part to the courts, where Democratic state AGs and others are committed to showing the thinness of those claims. It will also shift to the bureaucracies Trump thinks he can bend to his will.”
Other legal experts see Trump charging ahead to boost his own powers.
“Trump appears to be in a rush to test how easy it will be for him to ignore our laws and constitution when they stand in the way of his agenda,” said Larry Noble, an ex-Federal Elections Commission general counsel who now teaches law at American University.
“So far, most congressional Republicans seem content to look the other way, effectively making Congress where they control both houses a rubber stamp for Trump’s dictates, rather than one of three co-equal branches of government designed to be a check on a president’s attempt to become a monarch.”
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