Throughout his first two weeks in office, Donald Trump has been firing officials across the federal government, including inspectors general at Cabinet agencies and prosecutors at the Department of Justice. In the former case, Trump was required by law to inform Congress in advance, and to provide a “substantive rationale.” (He did not.) The latter case may have violated civil-service protections for nonpolitical members of the federal bureaucracy. It remains to be seen exactly how the courts—and perhaps even the Supreme Court, which has shown deference to broad theories of executive power—will respond to Trump’s actions.
I recently spoke by phone with Jack Goldsmith, a Harvard Law professor and former head of the Justice Department’s Office of Legal Counsel. (He co-writes a Substack called Executive Functions.) Goldsmith recently told the New York Times, about these issues, “We’re going to find out a lot about Chief Justice Roberts’s ultimate commitments.” During our conversation, which has been edited for length and clarity, we discussed just how strategic the Administration’s actions are, why the Roberts Court might be likely to affirm extreme theories of executive power, and what Trump is really trying to do to the Justice Department.
You recently told the Times, about all these firings, “On one level, this seems designed to invite courts to push back because much of it is illegal and the overall message is a boundless view of executive power. . . . But really, they are clearly setting up test cases.” What specifically do you view as illegal?
The things that are legally problematic, or clearly illegal, include the overbroad Office of Management and Budget spending-freeze memo, which they at least temporarily withdrew, and which appeared to be based on an assertion of Presidential authority to not spend appropriated money. They have a theory about why that’s O.K., but I don’t think it’s going to succeed in the Supreme Court.
They have fired civil servants, which runs afoul of civil-service protections, and is not a removal power that the Supreme Court has yet recognized. The removal power is the power to remove executive-branch officials, which the Supreme Court has recognized with a couple of exceptions. The Trump Administration has fired a member of the National Labor Relations Board—there’s a precedent that says the President does not have the authority to fire in that context. I also believe that the refusal to enforce the TikTok ban goes far beyond what the Supreme Court has said is the permissible scope of Presidential law-enforcement discretion. The President can’t just decide to not enforce a law passed by a prior Administration because he wants to study its national-security implications. He also withdrew from the Paris Agreement without complying with the one-year notice, and that’s inconsistent with the treaty, and inconsistent with executive-branch precedents that say the President has to follow the notice requirements. There are probably a lot more, but these are the ones that have stuck out to me.
What did you mean by “setting up test cases”? Does that imply that you think this is a conscious strategy in some way?
It’s a bit of a puzzle. It’s not clear who’s running the legal shop in the Trump Administration right now. But this could be part of a concerted strategy to set up test cases because they want to push the outer boundaries of executive power before a Supreme Court that they think might be sympathetic to their views. By flying in the face of Supreme Court precedents, they’re setting themselves up to ask the Court to overrule those precedents. That’s what I meant about bringing test cases. But that assumes something I’m not sure of, which is that this is part of a conscious, legal strategy by some sophisticated, informed lawyers who are managing all of this. And there’s an alternate theory that there’s none of that going on, that this is Trump 1.0, just on a larger scale. It might be a combination of both.
If it is a legal strategy, is the goal to expand Presidential authority around the specific acts that they’re setting up test cases about, or is the theory that it’s to accomplish something broader?
So, if I understood you correctly, it’s a bit of both. Some of the things they’re doing fly in the face of Supreme Court precedents. These are Supreme Court precedents about the President’s removal power, where the Court has recognized some restrictions. Some people think these are fragile and jeopardized precedents, but they’ve been recently reaffirmed by the Court.
By doing things that explicitly fly in the face of those protections, it seems that they’re itching for a fight over whether the Supreme Court is going to stick by those restrictions on Presidential power or expand it.
The issue of spending power has been settled since Richard Nixon tried to say that the President had broad constitutional authority to not spend money appropriated by Congress for broad, policy-based reasons. William Rehnquist, the head of his Office of Legal Counsel, said that he didn’t think that was lawful and Nixon did it anyway. And then Congress pushed back, enacting a law, passed in 1974, that has governed ever since, and that Presidents have more or less complied with. By having these very broad spending freezes and very broad claims of not wanting to appropriate money, the Trump team seems to be setting up a legal challenge to get a recognition of a new Presidential power to not have to spend money that Congress has appropriated.
The Supreme Court has never addressed this question. They’ve never addressed the Nixon theory. And, if the Supreme Court blesses that theory, the Trump team will have achieved a large expansion of Presidential power. They wouldn’t have to spend other appropriated monies. That’s the precedent they’re seeking.
How extreme of a theory does it seem to you?
“Extreme” is not the word I would use, but it’s a novel theory. I don’t think it works at all. I don’t think there’s any plausible legal basis to it. But there is an argument for it, and I can flesh it out if you want me to.
Please.
It’s got a couple of components. The Constitution says that the President can’t spend unappropriated money. But the Constitution does not say that the President has to spend all appropriated money. For much of our history, going back to at least as early as Thomas Jefferson, Presidents did not always spend all of the appropriated money for a whole variety of reasons. There was a practice, in the nineteenth and twentieth centuries, of Presidents sometimes not spending appropriated money. Early on, Congress didn’t always specify that all the money appropriated had to be spent. And sometimes Presidents wouldn’t spend it and, sometimes, this led to disputes. But there was no broad-based constitutional power to not spend money until Nixon’s assertion.
I do not think, and most people don’t think, that those points add up to an exclusive Presidential power, granted by the Constitution, not to spend appropriated money. It would be an extraordinary shift of power from Congress to the President. And the appropriations power in Congress is thought to be one of the most important powers that the Framers gave it. This is not a small thing if the President can do this. So I’m not saying that there’s no argument on the other side; I’m saying it’s a weak argument.
