Reining in Rogue Presidents
How ambiguities in the law gave Trump power he could seize—and what a future Congress can do about it.
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.
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.
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.
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.
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.
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.
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).
Arguably the last last last word goes to the historians, but let’s leave them out of this.
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