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Tag: presidential power

  • Capture of Maduro and US claim that it will run Venezuela raise new legal questions

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    The Trump administration’s capture of Venezuela’s president and claims that it will “run” the country are raising stark new questions about the legality of the U.S. actions and its future operations in the South American nation.Related video above: U.S. strikes Venezuela, captures President Maduro in overnight operationThe middle-of-the-night seizure of Nicolás Maduro, who was transported with his wife on a U.S. warship to face narco-terrorism conspiracy charges in New York, is beyond even the most high-profile historical examples of aggressive American actions toward autocratic governments in Panama, Iraq and elsewhere, legal experts said. It came after a surprise U.S. incursion that rocked the Venezuelan capital with overnight explosions.”This is clearly a blatant, illegal and criminal act,” said Jimmy Gurule, a Notre Dame Law School professor and former assistant U.S. attorney.The stunning development caps months of aggressive U.S. military action in the region, including the bombing of boats accused of trafficking drugs and seizures of oil tankers off the coast of Venezuela. The Trump administration has conducted 35 known boat strikes against vessels, killing more than 115 people since September, and positioned an armada of warships in nearby waters.The bigger debate than legality is yet to come, said John Yoo, an early architect of the George W. Bush administration’s policy in Iraq and now a law professor at the University of California, Berkeley.”It’s easier to remove a dictator,” he said, based on his experience in the Iraq War. But ensuring the transition to a stable democratic government is “the harder part.”Maduro’s arrest on anniversary of Noriega’s surrenderMaduro’s arrest came 36 years to the date of the surrender of Panama’s strongman, Manuel Noriega, a notable milestone in American involvement in the Western Hemisphere. The U.S. invaded Panama in 1989 to arrest Noriega on drug trafficking charges.In Panama, however, U.S. national security interests were directly at stake in the form of the Panama Canal as well as the safety of American citizens and U.S. military installations in the country.Video below: Former Alabama exchange student reacts to Maduro captureBy contrast, Congress has not authorized any American military strike or law enforcement move against Venezuela.”The President will claim that this fits within a vast body of precedent supporting broad executive power to defend the United States, its citizens, and its interests,” Matthew Waxman, a Columbia University law professor who was a national security official in the Bush administration, said by email. “Critics will charge that this exceeds the bounds of presidential power without congressional authorization.”While U.S. agents have a long history of snatching defendants abroad to execute arrest warrants without authorization, federal courts have long deferred to the White House in foreign policy and national security matters.For example, U.S. bounty hunters, working under the direction of the Drug Enforcement Administration, in 1990 abducted in Mexico a doctor accused of killing DEA agent Enrique “Kiki” Camarena.”Courts give great deference to the president on issues related to national security,” said Gurule, who led the prosecution against Camarena’s killers. “But great deference does not mean absolute deference and unfettered authority to do anything.”Congress has yet to authorize or ban US actionsTrump’s administration has declared the drug cartels operating from Venezuela to be unlawful combatants and has said the United States is now in an “armed conflict” with them, according to an administration memo obtained in October by The Associated Press.The memo appears to represent an extraordinary assertion of presidential war powers, with Trump effectively declaring that trafficking of drugs into the U.S. amounts to armed conflict requiring the use of military force. That is a new rationale for past and future actions.Congress, which has broad authority to approve or prohibit the president’s war powers, has failed to do either, even as lawmakers from both political parties grow increasingly uneasy with the military actions in the region, particularly after it was revealed that U.S. forces killed two survivors of a boat attack with a follow-up strike.Congress’ Democratic leaders, Sen. Chuck Schumer and Rep. Hakeem Jeffries, demanded immediate briefings for the “gang of eight” leaders on Capitol Hill, which includes top members of the Intelligence committees, as well as for other lawmakers. Congressional leaders were not notified of the actions until after the operation was underway.”The idea that Trump plans to now run Venezuela should strike fear in the hearts of all Americans,” Schumer said. “The American people have seen this before and paid the devastating price.”Michael Schmitt, a former Air Force lawyer and professor emeritus at the U.S. Naval War College, said the entire operation — the boat strikes as well as the apprehension of Maduro — clearly violates international law.”Lawyers call it international armed conflict,” Schmitt said. “Lay people call it war. So as a matter of law, we are now at war with Venezuela because the use of hostilities between two states clearly triggers an internal armed conflict.”War powers vote aheadHouse Speaker Mike Johnson, R-La., said the administration “is working to schedule briefings” for lawmakers next week.Republican lawmakers in Congress largely welcomed the capture of Maduro as ridding the region of a leader they say is responsible for drug trafficking, but Democratic lawmakers warned that in veering from the rule of law, the administration is potentially greenlighting other countries such as China or Russia to do the same.”Beyond the legality, what kind of precedent does it send?” asked Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee. He said in an interview that the rebuilding plan ahead has echoes of the Iraq War as the Trump administration promises to use Venezuela’s oil revenue to pay the costs.Waxman, the Columbia University law professor, said seizing control of Venezuela’s resources opens up additional legal issues: “For example, a big issue will be who really owns Venezuela’s oil?”The Senate is expected to try again next week to curtail Trump’s actions, with a vote expected on a bipartisan war powers resolution that would block using U.S. forces against Venezuela unless authorized by Congress.Senate Majority Leader John Thune, R-S.D., said he is grateful for the armed forces “who carried out this necessary action.” He said he spoke to Secretary of State Marco Rubio and wants more information.”I look forward to receiving further briefings from the administration on this operation as part of its comprehensive counternarcotics strategy when the Senate returns to Washington next week,” Thune said.Rubio said at a briefing Saturday with Trump that because of the nature of the surprise operation, it was not something that could be shared beforehand with the lawmakers.Goodman reported from Miami.

    WASHINGTON (AP) —

    The Trump administration’s capture of Venezuela’s president and claims that it will “run” the country are raising stark new questions about the legality of the U.S. actions and its future operations in the South American nation.

    Related video above: U.S. strikes Venezuela, captures President Maduro in overnight operation

    The middle-of-the-night seizure of Nicolás Maduro, who was transported with his wife on a U.S. warship to face narco-terrorism conspiracy charges in New York, is beyond even the most high-profile historical examples of aggressive American actions toward autocratic governments in Panama, Iraq and elsewhere, legal experts said. It came after a surprise U.S. incursion that rocked the Venezuelan capital with overnight explosions.

    “This is clearly a blatant, illegal and criminal act,” said Jimmy Gurule, a Notre Dame Law School professor and former assistant U.S. attorney.

    The stunning development caps months of aggressive U.S. military action in the region, including the bombing of boats accused of trafficking drugs and seizures of oil tankers off the coast of Venezuela. The Trump administration has conducted 35 known boat strikes against vessels, killing more than 115 people since September, and positioned an armada of warships in nearby waters.

    The bigger debate than legality is yet to come, said John Yoo, an early architect of the George W. Bush administration’s policy in Iraq and now a law professor at the University of California, Berkeley.

    “It’s easier to remove a dictator,” he said, based on his experience in the Iraq War. But ensuring the transition to a stable democratic government is “the harder part.”

    Maduro’s arrest on anniversary of Noriega’s surrender

    Maduro’s arrest came 36 years to the date of the surrender of Panama’s strongman, Manuel Noriega, a notable milestone in American involvement in the Western Hemisphere. The U.S. invaded Panama in 1989 to arrest Noriega on drug trafficking charges.

    In Panama, however, U.S. national security interests were directly at stake in the form of the Panama Canal as well as the safety of American citizens and U.S. military installations in the country.

    Video below: Former Alabama exchange student reacts to Maduro capture

    By contrast, Congress has not authorized any American military strike or law enforcement move against Venezuela.

    “The President will claim that this fits within a vast body of precedent supporting broad executive power to defend the United States, its citizens, and its interests,” Matthew Waxman, a Columbia University law professor who was a national security official in the Bush administration, said by email. “Critics will charge that this exceeds the bounds of presidential power without congressional authorization.”

    While U.S. agents have a long history of snatching defendants abroad to execute arrest warrants without authorization, federal courts have long deferred to the White House in foreign policy and national security matters.

    For example, U.S. bounty hunters, working under the direction of the Drug Enforcement Administration, in 1990 abducted in Mexico a doctor accused of killing DEA agent Enrique “Kiki” Camarena.

    “Courts give great deference to the president on issues related to national security,” said Gurule, who led the prosecution against Camarena’s killers. “But great deference does not mean absolute deference and unfettered authority to do anything.”

    Congress has yet to authorize or ban US actions

    Trump’s administration has declared the drug cartels operating from Venezuela to be unlawful combatants and has said the United States is now in an “armed conflict” with them, according to an administration memo obtained in October by The Associated Press.

    The memo appears to represent an extraordinary assertion of presidential war powers, with Trump effectively declaring that trafficking of drugs into the U.S. amounts to armed conflict requiring the use of military force. That is a new rationale for past and future actions.

    Congress, which has broad authority to approve or prohibit the president’s war powers, has failed to do either, even as lawmakers from both political parties grow increasingly uneasy with the military actions in the region, particularly after it was revealed that U.S. forces killed two survivors of a boat attack with a follow-up strike.

    Congress’ Democratic leaders, Sen. Chuck Schumer and Rep. Hakeem Jeffries, demanded immediate briefings for the “gang of eight” leaders on Capitol Hill, which includes top members of the Intelligence committees, as well as for other lawmakers. Congressional leaders were not notified of the actions until after the operation was underway.

    “The idea that Trump plans to now run Venezuela should strike fear in the hearts of all Americans,” Schumer said. “The American people have seen this before and paid the devastating price.”

    Michael Schmitt, a former Air Force lawyer and professor emeritus at the U.S. Naval War College, said the entire operation — the boat strikes as well as the apprehension of Maduro — clearly violates international law.

    “Lawyers call it international armed conflict,” Schmitt said. “Lay people call it war. So as a matter of law, we are now at war with Venezuela because the use of hostilities between two states clearly triggers an internal armed conflict.”

    War powers vote ahead

    House Speaker Mike Johnson, R-La., said the administration “is working to schedule briefings” for lawmakers next week.

    Republican lawmakers in Congress largely welcomed the capture of Maduro as ridding the region of a leader they say is responsible for drug trafficking, but Democratic lawmakers warned that in veering from the rule of law, the administration is potentially greenlighting other countries such as China or Russia to do the same.

    “Beyond the legality, what kind of precedent does it send?” asked Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee. He said in an interview that the rebuilding plan ahead has echoes of the Iraq War as the Trump administration promises to use Venezuela’s oil revenue to pay the costs.

    Waxman, the Columbia University law professor, said seizing control of Venezuela’s resources opens up additional legal issues: “For example, a big issue will be who really owns Venezuela’s oil?”

    The Senate is expected to try again next week to curtail Trump’s actions, with a vote expected on a bipartisan war powers resolution that would block using U.S. forces against Venezuela unless authorized by Congress.

    Senate Majority Leader John Thune, R-S.D., said he is grateful for the armed forces “who carried out this necessary action.” He said he spoke to Secretary of State Marco Rubio and wants more information.

    “I look forward to receiving further briefings from the administration on this operation as part of its comprehensive counternarcotics strategy when the Senate returns to Washington next week,” Thune said.

    Rubio said at a briefing Saturday with Trump that because of the nature of the surprise operation, it was not something that could be shared beforehand with the lawmakers.

    Goodman reported from Miami.

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  • Video: The Man Expanding Trump’s Presidential Powers

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    new video loaded: The Man Expanding Trump’s Presidential Powers

    Coral Davenport, a New York Times reporter, explains how Russell Vought, the director of the Office of Management and Budget, plans to circumvent Congress’s budgetary powers to advance the Trump administration’s agenda.

    By Coral Davenport, Melanie Bencosme, Stephanie Swart, Laura Bult, June Kim and Ray Whitehouse

    September 29, 2025

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    Coral Davenport, Melanie Bencosme, Stephanie Swart, Laura Bult, June Kim and Ray Whitehouse

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  • Reining in Rogue Presidents

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    There oughta be a law.

    Seriously, there ought to be a law. Because the ones we have are not up to the task of reining in a bad-faith actor in the Oval Office.

    Time and again in just eight months back in office, Donald Trump has advanced norm-busting assertions of presidential power far beyond anything ever attempted—or even dreamed of—by his predecessors. Trump has declared national emergencies purporting to justify hundreds of questionable actions that would typically require congressional approval or lengthy regulatory review. Those actions include the imposition of tariffs; sending the military to Los Angeles; federalizing the Washington, D.C. police force; militarizing the southern border; ending birthright citizenship; deporting foreign students and scholars; targeting colleges, universities and law firms; undermining the independence of administrative agencies; and dismantling (among other entities) the Department of Education.1

    As tempting as it may be to call these actions “blatantly illegal,” the truth is actually worse. The constitutional and statutory ambiguities Trump is attempting to exploit really do exist. Indeed, strategic ambiguity has until recently generally been viewed as a feature, not a bug, of our legal system.

    Our Constitution is framed in generalized language, with phrases like “due process” and “equal protection” left largely undefined. This broad language gives courts room to apply principles designed to endure across generations by allowing future interpretation as society changes and evolves. Statutory language also intentionally embraces strategic ambiguity in order to bridge the gap between lawmakers with different political ideologies, leave the details to administrative agencies and the courts, and allow the laws to breathe as technology and social norms evolve.

    But broad, nonprescriptive constitutional and statutory language is only a virtue when the American public puts good-faith actors in charge. In the hands of a bad-faith leader, strategic ambiguity becomes a weapon.

    Trump is a bad-faith actor with a wide authoritarian streak. He is systematically testing the limits of the law, probing for soft spots, loopholes, and ambiguities to increase his power and provide him legal cover to do “whatever I want.” He knows that his assertions of unprecedented presidential authority will be challenged, and that he will lose some of those challenges in the lower federal courts along the way to the Supreme Court, which he believes will be too cowardly or too ideologically aligned with him to rein him in, if not every time, then at least often enough to leave him with powers expanded vastly beyond what anybody had previously imagined.

    The legal justifications advanced by the Trump administration in support of his norm-busting assertions of presidential power may be thin or even nonexistent in the eyes of most legal scholars, but scholars don’t get the last word. That belongs to the courts, and the last last word belongs to the Supreme Court.2

    At this stage of the game, keeping a scorecard on the Court’s recent rulings on Trump’s exercise of extraordinary power can be misleading. The cases that have come before the Court to date have not yet been fully adjudicated on the merits by the lower federal courts. They are consequently not yet ripe for full Supreme Court review.

    Rather, the Court’s recent decisions have largely been made on its so-called “emergency docket.” The emergency docket provides a mechanism for parties to apply to the Court for interim relief while the cases below are still pending. They mostly involve applications to stay lower court rulings until the case is decided on the merits, or to temporarily enforce or block laws or policies. Cases on the Court’s emergency docket are often decided without full briefing, oral arguments or explanation of the rationale for the ruling. The orders are typically unsigned and, unless one of the justices writes a dissent, do not indicate how each justice voted.

    Because granting an application for preliminary relief is just that—preliminary—it may not necessarily reflect how the Court will ultimately rule on the underlying issues. Theoretically, what appear to be major victories can be entirely undone later, after the cases have been fully litigated, decided on the merits, and affirmed or denied on appeal.

    But in the meantime—which may be months or even years while a case wends its way through the courts—the stay of a lower court decision prohibiting Trump from taking actions determined to be beyond his legal authority effectively frees him to continue unabated with the challenged conduct. And once an act is done—consider, for instance, sending military forces to U.S. cities; or disappearing, without due process, undocumented individuals to countries with which they have no connection; or telling all the civilian bureaucrats in a federal agency that they have to leave the office and never come back—it cannot be easily undone. In those instances, the “interim” label is cold comfort indeed. The decision may be “interim,” but the underlying conduct is nevertheless a fait accompli.

    While the ultimate legal resolution of the myriad issues raised by Trump’s assertions of executive authority is a story yet to be told, the real-world impact is happening right before our eyes—interim schminterim, the Court is failing to rein in Trump. He has used the emergency docket repeatedly to remove limitations imposed by the lower federal courts on his exercise of extraordinary and unprecedented presidential powers, often successfully. A recent New York Times analysis found that the Trump administration’s record of success on the Court’s emergency docket far surpasses previous administrations. Trump has prevailed 84 percent of the time, compared with 53 percent for the Biden administration.

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    A clear pattern has emerged in the Court’s repeatedly putting its thumb on the scale in Trump’s favor, often “without a murmur of explanation”: Virtually all of the cases will require the Court to interpret vague, ambiguous statutory language drafted by Congress to permit presidents to act swiftly and decisively in times of crisis.

    That Congress has effectively ceded some of its powers to the executive branch in the service of enabling decisive action in bad times isn’t theoretically a bad thing. It is how Congress has done it, not that it has done it, that has created our current mess.

    And it will be up to Congress to get us out of it.

    Congress must face the cold reality that it can no longer assume good faith when it drafts legislation or amends existing statutes. Strategic ambiguity is no longer sufficient to protect our democracy. Where there are now only broad, undefined standards, there need to be more precisely defined laws.

    Here are just a few (out of many) of the areas where a future Congress—maybe after the midterms, maybe sometime later—needs to act.

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    1. The National Emergencies Act

    Nothing better illustrates the tension between the need to enable prompt decisive action in times of crisis, on the one hand, and the risk that granting a president broad, undefined emergency powers that can easily be abused, on the other, than the National Emergencies Act. The law says that: “With respect to Acts of Congress authorizing the exercise, during a period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency.”

    But nowhere in the act is there any definition of a “national emergency” or any guardrails constraining the president from declaring one any time he wants.

    Trump has already declared nine national emergencies purporting to justify hundreds of questionable actions that would typically require congressional approval or lengthy regulatory review. Congress needs to take a close look at the National Emergencies Act to see if some guardrails can be established to prevent presidents from opportunistically declaring national emergencies in situations that do not reasonably qualify as national emergencies.

    But that won’t be nearly enough. Congress should also revisit specific statutes that grant presidents extraordinary powers in times of emergency to make sure that they are clear in defining the circumstances under which those powers are authorized.

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    2. Sending the military to U.S. cities

    The 1878 Posse Comitatus Act prohibits the use of federal forces to perform core civilian law enforcement functions unless “expressly authorized by the Constitution or Act of Congress.” Nevertheless, in early June, following two days of protests over ICE raids in Los Angeles, Trump issued a memorandum purportedly authorizing the government to federalize and deploy the National Guard and “other members of the regular Armed Forces” to Los Angeles.

    Trump relied on 10 U.S.C. 12406 as a congressionally authorized exception to the Posse Comitatus Act. That statute authorizes a president to deploy federalized National Guard units inside the United States if (1) the country is “invaded or is in danger of invasion by a foreign nation”; (2) there is “a rebellion or danger of a rebellion” against the authority of the United States; or (3) the president is “unable with the regular forces to execute the laws of the United States.”

    But nothing in Section 12406 purports to define “invasion,” “rebellion,” or “regular forces,” clearing the way for Trump to argue that he, and he alone, gets to decide whether what looks to all the world like a serious but not out-of-control law-enforcement issue qualifies as a “rebellion” (whatever that means) that could not be contained by “regular forces” (whatever that means).

    Congress can go a long way toward making this kind of bad-faith conduct more difficult to justify, if not eliminating it entirely, by amending Section 12406 and other statutes like it to use narrower, more carefully defined terms that make it clear that an “invasion” is really an invasion, a “rebellion” is really a rebellion, and that these are not just conditions to which a president has unfettered discretion to assign a pejorative label.

    And in case you think that it’s too late because the damage has already been done, you might take notice that Trump recently branded the mayoral candidacy of Zohran Mamdani in New York City as a “rebellion.” As tempting as it might be to dismiss this as just the most recent example of Trumpian bloviation, it is best not to lose sight of the legal weight the Trump administration has attached to branding something as a “rebellion.” If it qualifies as a rebellion when a mayoral candidate has views that a sitting president doesn’t like, then there are no limits to presidential power.

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    3. Undermining the independence of the Federal Reserve

    In late August, Trump announced he had fired a member of the Federal Reserve Board of Governors, Lisa Cook. Section 10 of the Federal Reserve Act states that members shall hold office for a term of 14 years unless sooner removed “for cause” by the president. Trump’s purported “cause” for firing Cook—an unsubstantiated and uncharged allegation that she committed “mortgage fraud” because she checked the wrong box in a loan application years before she was appointed to the board—is plainly pretextual. Trump has been trying to bully the Fed into lowering interest rates since the day he took office, and firing Cook allows Trump to both replace her with somebody more accommodating and to send a message to other Fed officers, both nationally and regionally, to either get on board with his political agenda or lose their positions.

    Trump’s argument may seem preposterous—the federal court that rejected it on Monday seemed to feel that way—but the Federal Reserve Act doesn’t define “cause,” leaving the field open for the Supreme Court to take the cowardly way out, saying something like, “we’re staying out of this—Congress left it to the executive branch to determine whether cause exists.”

    And Trump will also have a second bite at this apple, again stemming from statutory language that could have been written differently to prevent bad faith politicization of a regulatory agency.

    Trump will argue that the “for cause” restriction on removing a member of the Fed is unconstitutional, regardless of how it might be interpreted. In support of this argument, Trump will cite the Court’s 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau, which struck down a similar for-cause removal protection that Congress had given to the director of the CFPB. The Seila Law decision is, to be sure, an imperfect precedent for Trump’s argument. The Court’s decision in that case focused squarely on the highly specific and somewhat unusual structure of the CFPB, under which extensive rulemaking, enforcement, and adjudicatory powers were controlled by a single Director. It is an open question whether the Court would extend the Seila Law holding to a multi-member agency such as the Federal Reserve.

    Even if the Court ultimately deems the “for cause” provision in the Federal Reserve Act to be constitutionally permissible, Congress can protect the independence of other federal agencies by structuring them more carefully. The decision in Seila Law put in play a number of factors that could bear on the constitutionality of for-cause protections. For instance, Congress could be careful to avoid granting too much executive power to the agency. It could avoid concentrating the agency’s power in a single agency head. It could tie the agency’s budget to the congressional appropriations process. All of these factors loomed large in the Seila Law decision, and while there’s no guarantee, these congressional actions could help to shield independent agencies from politicization by permitting well-defined “for cause” restrictions on the removal of members.

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    4. Tariffs

    The Constitution gives Congress, not the president, the authority to levy taxes. There is no serious dispute about that. Yet Trump has levied across the board tariffs—taxes—against most of the countries in the world. Trump declared a “national emergency” arising from foreign trade and economic practices and invoked the International Emergency Economic Powers Act of 1977 (“IEEPA”) as the legal basis for exercising taxing authority that the Constitution gave exclusively to Congress. IEEPA says nothing about taxes or tariffs, but in relevant part it authorizes the president to “regulate” “importation” to deal with “any unusual and extraordinary threat” to the economy of the United States. None of these terms is defined in the statute. The Court of International Trade ruled that IEEPA did not authorize Trump to impose wide-ranging tariffs, and the United States Court of Appeals for the Federal Circuit affirmed the ruling. Trump has appealed to the Supreme Court. The Court scheduled oral arguments in November.

    5. Removal of non-citizens to random countries

    The Trump administration has embarked on a program of removal of non-citizens to countries, including South Sudan, from which they did not come and with which they have absolutely no connection. In June, the Supreme Court issued an order, without any explanation, that freed to Trump to continue the third-country removals until such time, if ever, that legal challenges to the practice have been resolved. The statute on which Trump relies for these removals, 8 U.S.C. 1231(b), requires that non-citizens be removed to the country from which they arrived in the United States unless doing so is “impractical, inadvisable, or impossible.” None of those terms are defined in the statute.

    All of these excesses can be reined in, if not entirely eliminated, by Congress—or at least by a Congress not under Donald Trump’s thumb. All it needs is the wisdom to recognize its own crucial role in creating this problem through generations of strategic ambiguity, and a determination to do something about it now that the rules of the game have changed and good faith can no longer be assumed.

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    1

    If you’re interested in a fairly comprehensive list of “harmful executive actions” Trump has visited on our nation, have a look at this running tally maintained by the staff of Rep. Steve Cohen (D-Tenn).

    2

    Arguably the last last last word goes to the historians, but let’s leave them out of this.

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  • Here’s Why the Supreme Court Keeps Writing Trump Blank Checks

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    SIX MEMBERS OF THE SUPREME COURT do not seem to understand what any high school student knows about the importance of checks and balances to protecting American democracy. Why not?

    Widely used textbooks and lesson plans, popular encyclopedias, and even the federal government’s own websites all stress the Framers’ wise decision to diffuse power among three branches of government, creating a system in which each branch can block or challenge another’s assertion of power.

    This power of each branch to check the ambitions of the others is not merely a theoretical power that should rest limp in the hands of feckless officials. It is a constitutional duty the Framers established to guard against excessive aggregations of power.

    In case after case, however, the six Republican-appointed members of the Supreme Court1 have flouted this crucial principle, abdicating their constitutional obligation to restrain presidential arrogations of unauthorized power. Instead of operating as a check against an overly aggressive presidency, the majority has repeatedly written blank checks allowing President Trump to insert any amount of power that he chooses to fill in.

    In a stream of recent decisions, including many conducted on the so-called shadow docket without the benefits of full litigation, the majority has summarily unleashed the Trump administration from constraints that scores of federal judges—many of them appointed by Republican presidents, including Trump himself—have deemed constitutionally necessary.

    At the end of its most recent term, the six-justice majority stayed injunctions that three different federal judges had issued enjoining President Trump’s executive order purporting to nullify “birthright citizenship,” despite the explicit declaration in the Fourteenth Amendment that “all persons born in the United States” are American citizens. The majority could not quite bring themselves to read this provision out of the Constitution, so they ruled that the lower courts should not use broad injunctions to interfere with the president’s policies.

    The majority complained that, when a federal court “enters a universal injunction against the Government,” it improperly “intrudes” on executive branch prerogatives and “prevents the Government from enforcing its policies against nonparties,” even if those policies are unconstitutional. It is hard to imagine a more stunning abdication of the federal judiciary’s obligation to keep an anti-constitutional executive branch in check.

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    In July, without even bothering to explain its reasons, the justices simply indulged President Trump’s desire to rule by decree, without the niceties of obtaining congressional approval or support. This unsigned decision stayed lower-court rulings that had blocked implementation of his executive order calling for massive restructuring of the government, closing down various operations chartered by Congress, and firing tens of thousands of public servants.2

    In another enhancement of raw presidential power at the expense of legislative authority, the six-justice conservative majority summarily granted a stay allowing the president to push forward in dismantling the Department of Education. Created by Congress, the cabinet-level department is tasked with performing vital functions that are now left in limbo.

    Three times in the past few months, the majority knowingly and summarily disregarded a major Supreme Court precedent that had constrained another president, Franklin D. Roosevelt, when he attempted to unravel the federal government’s system of bipartisan regulatory agencies. In that 1935 precedent, Humphrey’s Executor v. United States, the Supreme Court concluded unanimously that presidential power does not extend to firing, for mere policy differences, officials serving in independent agencies such as the Federal Trade Commission. Back then, the Court found that Congress had arranged for commissioners to be removed during their multi-year terms only for misconduct or similar cause.

    Nevertheless, the current majority continued to indulge President Trump’s most extravagant assertions of presidential power, allowing him to sack the Democratic members of various regulatory agencies solely for partisan reasons. In these latest cases, the president’s targets were the Democratic appointees on the National Labor Relations Board, the Merit System Protection Board, the Consumer Product Safety Commission, and the Federal Trade Commission. As Justice Kagan recognized in dissenting in the NLRB/MSPB case, Congress had provided for federal regulators “to serve their full terms, protected from a President’s desire to substitute his political allies.” But when the majority of the current Court has to choose between Congress and President Trump, the president invariably wins.

    Another blank check came last month when, once again, the majority summarily suspended two lower courts’ rulings that barred the government from canceling commitments for $800 million in grants for ongoing medical research. As Justice Jackson noted in her dissent, the majority’s expedited action to allow President Trump to cancel any grants that might violate the administration’s anti-DEI policies obstructed “potentially life-saving scientific advancements.”

    After cataloguing the majority’s pattern of intervening at the earliest possible moment to give the Trump administration free rein, Justice Jackson observed that, “unfortunately,” this action was simply the “newest entry in the Court’s quest to make way for the Executive Branch.”

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    SO WHAT EXPLAINS this abject deference to President Trump’s whims and wishes? There are several theories on offer.

    Some court-watchers have argued over the years that the conservative justices are motivated by a desire for conservative policy outcomes. (The mirror critique has also long been made about the liberal justices: that, notwithstanding their legal reasoning, their real desire is to see liberal policy outcomes.) But that argument, whatever its merits in the past, does not match today’s circumstances, as Trump’s court victories largely relate to policies that are radical rather than recognizably conservative.

    A second theory is that the Court, guided by Chief Justice John Roberts, is keeping its powder dry—choosing to minimize clashes with Trump now so that it will retain its institutional legitimacy in case of a later, dire showdown. But there is zero evidence for this theory; it amounts to wishful thinking, doesn’t make logical sense, and becomes less plausible by the day.

    I’m persuaded by a third theory often aired: that several of the Republican-appointed justices have embraced the notion of the “unitary executive,” a strain of constitutional interpretation that holds, in essence, that all power in the executive branch is derived from the presidency, that all officers in that branch are merely exercising power on behalf of the president, and that no parts of the executive branch ought to be considered independent of the president or beyond his power to order or fire. This theory, popular among members of the Federalist Society, was spelled out in the Reagan era (although it has earlier antecedents). The justices who served in the executive branch under Republican presidents (Roberts in the Reagan White House, Clarence Thomas elsewhere in the Reagan administration, and Brett Kavanaugh in the George W. Bush White House) seem especially partial to it.

    But even the unitary executive theory doesn’t fully capture the radicalism of where this Court has gone. The vision of the presidency spelled out by Chief Justice Roberts on behalf of the six justices in last year’s Trump v. U.S. is like the unitary executive theory but on steroids. That opinion holds that President Trump (and, indeed, any president) enjoys constitutional immunity to commit federal felonies, making him exempt from accountability in federal courts for violating criminal laws enacted by Congress. (In Senate testimony last year, I explained why that decision is patently wrong, defies both the text of the Constitution and our constitutional history, and is profoundly dangerous.)

    When Roberts, in that ruling, wrote “the President is a branch of government” unto himself, the chief justice may have thought he was merely spelling out a Reagan-era vision of a stronger presidency and a unitary executive. But, as Harvard law professor Jack Goldsmith argued earlier this year, Trump v. U.S. is not just a “presidential immunity shield” but also “an executive branch sword”—an aggressive interpretation of the role of the president. With that ruling and the Court’s string of decisions granting Trump an unlimited bank account of power on which to draw, the Court set the stage not for a strong and stable presidency but for chaos in the executive branch, and a reckless and anti-constitutional presidency wielding power without fear of checks and balances. If the Court doesn’t change course, and soon, history will judge these six justices harshly.

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    Chief Justice John Roberts (appointed by President George W. Bush) and Associate Justices Clarence Thomas (George H.W. Bush) and Samuel Alito (George W. Bush), along with the three associate justices appointed by Trump in his first term (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett).

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    Because it was an unsigned stay, we don’t know precisely how the justices voted, only that a majority of them, including in this case the liberal Justice Sonia Sotomayor for technical reasons, backed Trump. Justice Ketanji Brown Jackson alone wrote in dissent.

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