A throughline of President Donald Trump’s second term in office is that his administration believes it can act with impunity when it comes to the law and to the U.S. Constitution. In a recent interview, President Trump responded to a question as to whether he had to uphold the Constitution with, “I don’t know.” In the more than 150 executive orders (EOs) that President Trump has issued during the first four months of this term, he frequently asserts that he is acting under authority granted him by Article II of the Constitution. In fact, the Constitution is intended to limit the powers of the presidency, not provide nearly limitless authority as President Trump is contending. The Constitution does not give a president the power to violate the Constitution, create or change congressional statutes, or override U.S. Supreme Court decisions—no matter what the EOs say.
When a president acts beyond the scope of his constitutional powers, members of his administration and the other branches of government must step in to stop him, lest the nation face not just a constitutional crisis but also the dismantling of American democracy. Congress has thus far failed to serve as a check on executive overreach, perhaps out of fear of political retribution. Thus, it is falling to the courts to robustly fulfill their constitutional role in policing the executive branch when it violates the Constitution and the laws as enacted by Congress.
Indeed, in the first months of the second Trump administration, at least 39 separate judges appointed by five different presidents—including Donald Trump himself—have ruled against his overreaching actions. They have variously issued temporary restraining orders or preliminary injunctions preventing the Trump administration from, among many other things, ending constitutional birthright citizenship, targeting opponents with politically motivated investigations, freezing funding that Congress had approved for projects, and cutting off funding due to political disagreements.
However, in the few cases that have reached the Supreme Court, the conservative justices appear to be using highly technical and narrow procedural decisions to avoid directly confronting the Trump administration and its seemingly unconstitutional actions. We have already seen how these rulings—such as in the Kilmar Abrego Garcia and Alien Enemies Act cases—have resulted in the administration skewing clear rulings to its own ends to frustrate the lower courts. By punting decisions on merits and permitting these seemingly unconstitutional actions to continue, the court is providing President Trump time to consolidate an anti-constitutional regime and to take actions that harm Americans’ well-being and undermine America’s global leadership. The damage being done to the nation will take years to undo but may well be irreversible.
Until Congress stands up to the Trump administration’s efforts to strip its own powers, the courts—and especially the Supreme Court—must stand up for Americans’ rights and the rule of law. And though there is a right-wing majority on the high court, the court should still be able to speak with one voice that the Constitution prevents the president from acting unconstitutionally. The key question to be answered is: Are the president’s actions constitutional and legal? The short answer is no.
The president cannot use the Alien Enemies Act to summarily deport people
President Trump’s EO invoking the Alien Enemies Act (AEA) of 1789 and his claim that the AEA grants him the authority to remove people—in this instance, alleged members of the Venezuelan Tren De Aragua (TdA) gang—without due process appears to be both illegal and unconstitutional. First, the Fifth Amendment was a direct rebuttal to such abuses as it requires that “[n]o person shall … be deprived of life, liberty, or property, without due process of law,” extending these protections beyond just citizens. Several lower court judges have issued orders prohibiting the removal of anyone under the AEA without due process. Indeed, the Supreme Court recently ruled that the government must provide individuals targeted by this EO the due process right to challenge their removals through the legal process. Though not legally binding, the Declaration of Independence shines a light on the illegitimacy of Trump’s actions; it decried the English king subjecting people in the colonies to “a jurisdiction foreign to our constitution,” “depriving [people] in many cases, of the benefits of Trial by Jury,” and “transporting [people] beyond Seas to be tried for pretended offences.”
Furthermore, a Trump-appointed judge in the Southern District of Texas recently ruled that the president’s invocation of the AEA to remove people “exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.” To that effect, the AEA—invoked only three times in American history—requires a “declared war” or an “invasion or predatory incursion” “by any foreign nation or government” for invocation, none of which is present here. In reviewing invocation of the AEA, a judge appointed by former Presidents Ronald Reagan and George H.W. Bush opined that “an invasion is a military affair, not one of immigration.” A recently declassified intelligence memo indicates that the Venezuelan government is not directing TdA in the United States, further undermining President Trump’s claims that the AEA was appropriately invoked.
So far, the Trump administration has sent more than 260 individuals—more than 100 of whom the administration says are members of TdA—to an El Salvadoran prison without constitutionally required due process. This includes Abrego Garcia, who had a judicial hold on his removal that granted him protection from being deported. Despite admitting that Abrego Garcia was removed due to an “administrative error,” the administration has vigorously pushed back against court orders that the government facilitate his return. As a result, one federal judge has already found probable cause to hold the government in criminal contempt of court for defying his orders around AEA removals. A second judge is conducting expedited discovery in the Abrego Garcia case with the apparent purpose of determining whether contempt proceedings should proceed.
The president cannot legally run for a third term
President Trump has flirted openly with running for a third term, stating that there are “methods” for doing so. He has even released “Trump 2028” merchandise. Regardless of whether President Trump has walked these claims back, the Constitution explicitly forbids President Trump from running for office for a third term.
The 22nd Amendment was ratified in 1951 to limit presidents to two terms after Franklin Delano Roosevelt was elected to a fourth term in 1942. Members of Congress who passed the amendment were unified in its purpose of “preventing a dictatorship or some totalitarian form of government from arising.” The amendment itself makes clear that, “No person shall be elected to the office of the President more than twice …” This negates any of President Trump’s assertions that he will be permitted to run again because his terms were not consecutive.
Additionally, the 12th Amendment states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President.” A clear reading of the Constitution shows that President Trump could not run for vice president with the intent of the president stepping down upon inauguration because President Trump is constitutionally ineligible under the 22nd Amendment.
The president cannot legally punish law firms for their legal activities
President Trump has issued several EOs targeting large law firms for representing clients affiliated with the Democratic Party, lawyers involved with the January 6 Committee, and former Democratic officials. These EOs strip the security clearances of all attorneys affiliated with the firms and prohibit them from accessing federal buildings. The EOs also require government contractors to disclose their affiliation with targeted law firms, which could result in the loss of their government contracts.
These EOs appear to be unconstitutional and in violation of multiple sections of the Bill of Rights. Indeed, a federal judge just ruled that President Trump’s EO targeting the law firm Perkins Coie was “Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints … contrary to the Constitution.” That court found that the EO violated the First Amendment through retaliation and viewpoint discrimination, the Fifth Amendment rights to equal protection and due process, and the Sixth Amendment right to counsel. The court did not address whether the EO served as an unconstitutional “Bill of Attainder”—imposing punishment on targets without trial—but suggested that the president cannot independently do what Congress is specifically barred from doing and that the matter could be addressed at a later time. As scholars have noted, “Even under the most tyrannical monarchs, the king never asserted unilateral authority to issue bills of attainder—a power the president now asserts for himself.” (emphasis in original)
Three other law firms subject to these EOs have already received temporary restraining orders against the Trump administration. It remains to be seen whether several other powerful law firms will now back out of agreements they made with the Trump administration to provide hundreds of millions of dollars of pro bono work to the government.
The president cannot legally punish his political opponents
The president can’t order that political opponents be punished but he can theoretically order that they be investigated, although such actions have long been considered beyond the pale of presidential action. In doing so, President Trump has destroyed the long-established independence of the Department of Justice (DOJ) and its freedom from political influence. Furthermore, by initiating sweeping investigations against his political opponents, Trump is taking upon himself a power that the founders explicitly rebelled against in 1776. As Joseph diGenova—President Trump’s former lawyer and a former U.S. attorney—stated, “The power to investigate and prosecute is the power to destroy.”
Indeed, directing pretextual investigations against political opponents for their constitutionally protected acts may well violate the Constitution in multiple ways. The First Amendment protects everyone in the United States from prosecution based on their free speech unless it constitutes a “true threat,” which does not apply to the cases described below. The Fifth Amendment equal protection clause also protects these individuals and institutions and prohibits the “illegitimate exercise of government power.” Furthermore, constitutional protections against bills of attainder could apply here as well.
These legal and constitutional principles should apply to the EOs directing the criminal investigation and stripping of security clearance of two political appointees from President Trump’s first term: Chris Krebs, former director of the Cybersecurity and Information Security Agency, and Miles Taylor, former chief of staff at the Deprtment of Homeland Security. These EOs appear to be wholly in retaliation for Kreb’s and Taylor’s past statements critical of President Trump’s efforts to dismantle democratic institutions and elections during his first term.
Beyond the Krebs and Taylor investigations, Attorney General Pam Bondi and former interim U.S. Attorney for the District of Columbia Ed Martin appear to be pursuing this agenda of political retribution through abuse of the criminal justice system. While interim U.S. attorney, Martin sent letters to Democratic members of Congress and senators purporting to investigate their public political speech as criminal threats. Martin has told top law schools to end diversity, equity, and inclusion (DEI) programs or their graduates would be blacklisted from DOJ jobs. He has also sent threatening letters to top-tier medical journals, such as The New England Journal of Medicine, accusing them of bias in publishing research articles. Martin is now an associate deputy attorney general and is in charge of a so-called DOJ “Weaponization Working Group.” Although this group is purportedly intended to de-weaponize DOJ, Martin has affirmed that it will be criminally investigating federal, state, and local officials who previously investigated President Trump, including special counsel Jack Smith, New York Attorney General Letitia James, and the DOJ personnel tasked with prosecuting January 6 insurgents.
Many of the targets of these investigations are already pushing back against the Trump administration’s seemingly unconstitutional actions, though the status of the cases remains unclear as they have not landed before a court.
The president cannot legally punish private companies and public organizations for diversity programs
President Trump has issued a slew of EOs targeting and attempting to eliminate DEI initiatives within and outside of the government. The administration has declared DEI “illegal,” issued EOs to eliminate DEI programs in the federal government, created a list of more than 250 words (including “accessible” and “woman”) to target and remove from government-maintained webpages, threatened to defund public schools that maintain diversity programs, threatened to cancel government contracts with companies and grant recipients if they use or encourage diversity programs, and initiated investigations against public and private institutions for using or having diversity programs.
Yet President Trump and the administration have not defined what they consider illegal about DEI. Simply put, their efforts to punish private individuals and organizations for vaguely prohibited speech and actions appear to be arbitrary and capricious and thus illegal. The First Amendment prohibits the government from mandating a speech code and prohibiting free association for the public. The Fifth Amendment prohibits the government from punishing people and privately held organizations without due process of law. As the EOs appear to prohibit people and organizations from speaking and associating freely and to punish those who do not comply with the president’s view of DEI, they appear to be facial violations of the Constitution.
The administration’s declaration that DEI programs are illegal stems from its expansive reading of Students for Fair Admissions v. President and Fellows of Harvard College. That case narrowly held that universities could not use race-based admissions systems but could consider an applicant’s discussion of how race affected their life.
Since the EOs were issued, at least 240 colleges and universities have deprioritized or eliminated diversity reforms for fear of being defunded. Some of America’s largest companies—including Coca-Cola, Goldman Sachs, Warner Bros., and The Walt Disney Co.—are eliminating or modifying DEI programs for fear of losing government contracts or facing intrusive federal investigations.
No statute or Supreme Court ruling states that advancing or considering diversity interests by private citizens or organizations is illegal. A Maryland federal district court judge recently barred implementation of the EOs because they were unconstitutionally vague and likely violated the First and Fifth amendments. The U.S. Court of Appeals for the 4th Circuit later narrowed the lower court’s order based on the government’s assertion that it would not act to violate the Constitution while the case proceeds on the merits. A concurring judge noted that “Agency enforcement actions that go beyond the [EO’s] narrow scope may well raise serious First Amendment and Due Process concerns.”
The administration’s recent move requiring all state education departments to affirm that their K–12 schools will not engage in DEI initiatives—again, without defining DEI—or be cut off from federal funding appears to fall squarely under the courts’ concerns. This threat seems to run afoul of Supreme Court precedent as illegally coercive. In National Federation of Independent Business v. Sebelius—involving Congress’ efforts to cut off Medicaid funding to states—the court held that unduly coercive efforts requiring states to adopt federal policies are unconstitutional. The court explicitly stated that “‘the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.’ Otherwise, the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.” That very same reasoning should apply directly to a president attempting to coerce states to adopt his policies, especially when they are not backed by law.
The president’s threats to cancel education funding due to ideological disputes contravene settled constitutional and legal principles. President Trump enjoys many powers under the Constitution, but the power to unilaterally, absent any due process, force states and institutions to comply with his shifting policy demands or lose federal funding is not one of them. Individuals, organizations, universities, and states themselves should be wary of bowing to the president’s demands because anticipatory obedience to an illegal order wreaks just as much havoc on the nation’s democratic system as the illegal orders themselves.
Conclusion
So far, the Supreme Court has made it difficult for the lower courts to enforce their orders against President Trump’s apparent overreach. Five justices have largely permitted the administration to move forward with seemingly illegal or unconstitutional actions by overturning temporary restraining orders on technical or procedural bases but have not spoken on the merits of any of the appealed cases. In doing so, the Roberts court may be staving off a direct confrontation between the judiciary and President Trump. However, judicial appeasement like this will only serve to provide a longer runway for President Trump and his administration to engage in activities that may later be deemed illegal and unconstitutional while harming Americans—and America—in the process. The courts should not shy away from this fight. The lower court judges who are on the front lines understand this. It is time for Chief Justice John Roberts and his colleagues to publicly recognize what is being done to the republic and take a stand for the rule of law.
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