Get ready for a maelstrom in the early months of Donald Trump’s presidency.
If he and his associates follow up on all their policy and procedural promises — or threats, depending on your perspective — they could put the federal government through unprecedented uncertainty and legal fights. Possible statutory and constitutional challenges to some of Trump's agenda items could be multitudinous and serious. Without prejudging their merits or those of the objections to them, but just to outline the possible coming contretemps, here are some subjects that could be in legal dispute.
The Ramaswamy-Musk DOGE approachTycoons Elon Musk and Vivek Ramaswamy will head a nonstatutory outside commission dubbed the Department of Government Efficiency (although it is not an actual department of the federal goverment) that aims to eliminate wasteful spending and redundant functions, massively cut staff, and save costs. The goals, in general, are salutary, but the methods need to be legal and sensible.
As the two DOGE leaders described their plan in a Nov. 20 newspaper column, however, they are inviting major legal challenges. The two principal laws or sets of laws governing the federal bureaucracy are civil service acts and the Administrative Procedure Act. In their column, the DOGE duo propose end-runs around both, the former tacitly and the latter explicitly.
To do so, they adopt highly disputed interpretations of a lengthy list of Supreme Court cases. From two cases, Franklin v. Massachusetts (1992) and Collins v. Yellen (2021), they assert that the president enjoys sweeping, unilateral authority, without the necessity of congressional action, to achieve massive reductions in personnel. From two more, in West Virginia v. Environmental Protection Agency (2022) and Loper Bright Enterprises v. Raimondo (2024), they assert that Trump, on his own and retroactively, and apparently without case-by-case court decisions, can immediately “pause” and essentially “nullif[y] thousands ... of regulations.”
Challengers almost certainly will rush to court to stall Trump’s “pause” — in other words, to keep the regulations intact pending the full run of court challenges — for any such broad-scale Trump action in toto and for each action individually. They will dispute the novel claims on three counts: retroactivity, unilateralism, and immediacy without proper public notice under the Administrative Procedure Act.
Even if Musk and Ramaswamy’s legal theories win the day, the litigation could take years, creating uncertainty, perhaps chaos, across whole realms of government-agency actions, with nobody knowing for sure which regulations apply, which federal workers have jobs, and which government grants and appropriations can proceed.
Impoundment of appropriated fundsIn the same column, Musk and Ramaswamy repeated a claim, made several times over months by Trump and his associates, that a president can “impound,” or refuse to spend, funds duly appropriated by Congress and already signed into law — or, alternatively, that he can decline to spend money for purposes that passed Congress’s appropriations process without being formally “authorized” by one of Congress’s policy committees. Both approaches, again, will invite titanic court battles. The first Trump gambit would openly challenge the constitutionality of the 1974 Impoundment Control Act, while the second would ask courts to invalidate internal congressional procedures involving the interplay between authorizing and appropriating committee duties.
The Supreme Court has not ruled directly on impoundment, although in a case involving considerable overlap logically and practically, the court in 1998 ruled against presidential line-item veto power. Earlier, in Train v. City of New York in 1975, the court had ruled against executive authority to withhold funds, albeit without directly addressing impoundment. These are among the cases giving strong hints that Trump may have a legal slog if he asserts impoundment power, even if the courts rule in his favor.
As for any claim that a president can tell Congress that its enacted appropriations are invalid if not previously “authorized,” suffice it to say that the Supreme Court repeatedly has refused to invalidate Congress’s actions over disputes about internal congressional procedures. Either way, the bigger picture is that uncertainty could reign, with all sorts of federal aid and grant and contract recipients left in limbo, as these fights go through numerous rounds of court battles.
TariffsTrump famously said he would put an across-the-board tariff of between 10% and 20% on all imported goods. He and his people claim he has the authority to do so unilaterally, again, without a new law passed by Congress. Challengers of all sorts, from importers to consumers to longshoremen, will probably quickly contest any such action. Section 232 of the Trade Expansion Act purports to give a president broad authority to set tariffs on his own, but it sets a series of procedural requirements he first must meet. Even if Trump follows those procedures, which would, at the least, slow down his imposition of tariffs, he still can’t pull the trigger on tariffs unless the Commerce Department makes a finding that the product being taxed “is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.”
While other parts of the Constitution make clear that the president is the preeminent decider on national security matters, this grant of discretion is not infinite either statutorily or, arguably, constitutionally. The first Trump administration lost a case on this issue. In November 2019, the U.S. Court of International Trade ruled that a company was due reimbursement for tariffs Trump put on imports of steel from Turkey.
Article 1, Section 8 of the Constitution says, “The Congress shall have Power To lay and collect Taxes, Duties, ... To regulate Commerce with foreign Nations.” Congress, not the president. The open question is to what extent Congress constitutionally can delegate that power to the president and to what extent Section 232 actually does so.
Trump will be able to point to various other duly enacted statutes, such as the International Emergency Economic Powers Act of 1977, to bolster his claims of authority. Numerous industry groups surely will claim, in turn, that he has not adequately identified a real emergency, much less a national security threat. Either way, get ready for a battle royale in the courts.
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Other constitutional disputesThere are more than a few other policy areas in which a new Trump administration could find itself entangled in court. The two most prominent involve his power to nominate or appoint executive branch officials and his ability to use military forces for domestic law enforcement or issues related to immigration, the border, and deportation. Some reports say Trump’s planners are backing away from their threats to use the “recess appointment” power in novel ways or to push to new limits the use of “acting” department heads. If so, that will be one less situation in which constitutional questions arise. As for domestic use of the military, much will depend on whether Trump adequately defines an “emergency” and on how courts interpret the interplay among constitutional provisions, the 1978 Posse Comitatus Act, and sundry other clauses scattered throughout other statutes.
Trump may win most or all of these possible battles, and he may or may not deserve to win on the merits. What is clear is that he is talking about pushing the limits on numerous fronts and that if he does so, judges and justices will be at the center of the storms.