After President Trump leaves the White House in 2021, critics of his abuse of executive power are urging Congress to tighten legal restrictions on how presidents can reshape the American government with the pen of a pen. But lawmakers largely did not act.
Monday, when Mr. As Trump took the oath of office to begin his second term, he presented a stunning view of the presidency. He not only revived some of the extended understandings of authority that had been left unfixed, but advanced new claims of sweepingness and constitutionality.
Among the rain of high orders, Mr. Trump has ordered prosecutors not to enforce a ban on the popular social media app TikTok until its Chinese owner sells it. President Joseph R. Biden Jr. signed the measure into law after it passed with broad support, and the Supreme Court unanimously upheld it.
Even if the law is appropriate, the Constitution says that presidents “shall see that the laws are faithfully executed.” Mr. Trump did not provide a clear explanation of how he has the legal power to enact legislation in his position, only vaguely referring to his “constitutional responsibility” for national security, foreign policy “and other key executive functions.”
Collective actions such as emergency proclamations and executive orders cannot create new executive powers of the president. Instead, they are a vehicle through which presidents exercise the legal authority they already have, either because the Constitution vested it in their office or because Congress passed a law to create it.
That said, there are often disputes about the proper interpretation of the scope and limits of executive power. It is common for the president to use an executive order to take actions that challenge their legality, leading to lawsuits that eventually reach the Supreme Court.
It is not clear whether anyone who opposes the TikTok ban has been sued. But many steps of Mr. Trump deals with immigration law, making it easier for legal challenges to follow and the legality of his executive power claims to come before judges.
With several orders, Mr. Trump used his constitutional role as commander-in-chief, portraying immigrants as invaders while blurring the line between immigration enforcement and military power.
“As commander in chief, I have no other responsibility than to protect our country from threats and attacks, and that is exactly what I will do,” he said in his first speech.
Among those orders, Mr. Trump announced that newly arrived immigrants may not use the law that allows them to apply for asylum. As a basis, he said the Constitution gave him the “natural power” to “prevent the physical entry into the United States of aliens engaged in aggression,” in addition to citing several vague provisions of immigration laws.
One such order directed the US Northern Command, which oversees military operations on the North American continent, to immediately implement a “campaign” plan to close the border “by repelling a variety of attacks involving mass illegal immigration, drug trafficking, human trafficking and smuggling, and other criminal activities.”
Mr. Trump and his advisers have talked about invoking the Sedition Act to use the military as other immigration agents at the border. But the order referred only to his constitutional powers as commander-in-chief, suggesting that he might be thinking of using the military in battle rather than acting as a lawmaker.
Some of these orders were to go back to the battles over power of administration that arose during the reign of Mr.
On Monday, Mr. Trump once again kicked off 2019 by declaring a state of emergency across the country along the border. He also implemented legislation that allows presidents, during an emergency, to redirect military funds for emergency-related construction projects. His goal, in 2019 and now, has been to spend more taxpayer money on the border wall project than lawmakers have authorized.
Is there really an emergency that an expanded wall would address, and would that justify overriding Congress’s role in deciding where to direct taxpayer money?
The wall does not solve the main problem of the borders in recent years: the very high number of migrants asking for asylum, overloading the system and leading to long delays for hearing cases. And in the last seven months, illegal crossings have fallen to their lowest levels since the summer of 2020, at the beginning of the coronavirus pandemic.
But the facts are less important that it is legal at any time for presidents to use emergency powers, declarations governed by the National Emergency Act of 1976.
That law does not strictly define the circumstances in which presidents can declare a state of emergency, leaving them with an unfettered discretion to exercise existing powers. But previous presidents followed principles of self-restraint.
In his first speech, critics challenged the legality of Mr. Trump’s border wall implementation. Trump, but the Supreme Court did not resolve the dispute before Mr. So any new legal challenge would have to start from scratch.
After the first term of Mr. Trump, House Democrats in 2021 passed a bill that would tighten restrictions on the president’s use of emergency powers, part of a package of reforms they call the “Protecting Our Democracy Act.” But Republicans denounced the move as a partisan attack on the outgoing president, who died on the way to the Senate floor.
However, the absence of Mr.
In a show of strength when he returned to office, he also declared a national emergency so that, as he said in his first speech, “we will drill, baby, drill.” No president has ever declared that kind of emergency before, and it gives him the power to suspend statutory environmental protections and expedite permits for new oil and gas projects.
The nation’s energy situation does not appear to be an emergency: The United States is producing more oil than any other country has ever done, in no small part because of the fracking boom and because of the thousands of new federal drilling permits issued by the Biden administration — surpassing Mr. Trump first. Gasoline, natural gas and electricity prices are low compared to their historical levels.
But this order said Mr. Trump determined that the policies of the Biden administration “put our country in a state of national emergency, where insufficient and intermittent energy availability, and an increasingly unreliable grid, require immediate and decisive action.” He also mentioned the growing need for electricity to run computers in artificial intelligence projects.
Elizabeth Goitein, director of the Brennan Center for Justice’s Liberty and National Security Program who has written extensively on the president’s emergency powers, predicted that many of Mr.
“Emergency powers should never be used to deal with long-standing problems such as illegal immigration that cannot be fixed and should be resolved through legislation,” said Ms. Goitein, who was one of those calling on Congress to curb the president’s powers. “The bad news is that Congress has failed to make changes to the National Emergency Act that would help prevent such abuses.”
There is no dispute that Mr. Trump had the legal authority to take other collective action. The Constitution clearly gives presidents unlimited power to pardon people for federal crimes or commute their sentences, for example, so there’s no doubt that Mr. crimes related to the Capitol riots.
But Mr. Trump appeared to present a novel or broad definition of legal authority in other ways.
He ordered his administration to make recommendations on whether to designate gangs and drug cartels as “foreign terrorist organizations,” extending legislation aimed at groups that use violence for political and ideological purposes to criminal groups that, while violent, are motivated by profit.
He also created an opportunity to use the Enemies Act of 1798 to summarily deport immigrants suspected of being members of drug cartels and gangs across nations without due process. The text of that law seems to want to be linked to the actions of the Government of other countries, so it is not clear whether the courts will allow Mr.
Mr. Trump also wants to change the basic understanding of the provision of the 14th Amendment to the Constitution that grants citizenship to most children born on American soil and “under the jurisdiction” of the US government. That provision has long been understood to include infants born to undocumented parents.
In the order, Mr. Trump used a theory developed by conservationists who want to suppress their so-called relatives because they see illegal immigration as luxury. For that reason, the provision can be interpreted as not applying to children whose parents are not US citizens or legal permanent residents, although visitors or undocumented persons are subject to the jurisdiction of federal prosecutors if they violate the law.
Mr. Trump has ordered agencies to refrain from issuing documents confirming citizenship – such as passports and Social Security cards – to children born to undocumented immigrants or to parents who are visiting the United States legally but temporarily, from birth 30 days from now.
Hours later, critics, including a coalition of Democratic-controlled states, brought multiple court challenges against it. Mr. Trump, the coalition asserted, wants to violate “this well-established and long-standing constitutional provision by executive fiat.”
It was yet another legal claim that seemed likely to come before the Supreme Court.
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