Faculty Experts on Presidential Powers in the New Administration
Columbia Law faculty discussed recent executive orders at a Lawyers, Community, and Impact event held on February 3.
Columbia Law faculty who are experts in presidential power, administrative law, and the Constitution explored the legal implications of recent actions by the executive branch at a Lawyers, Community, and Impact event.
“The Trump Administration’s Initial Executive Orders: Their Impact and Legality,” held February 3, featured Olatunde Johnson, Ruth Bader Ginsburg ’59 Professor of Law; Thomas W. Merrill, Charles Evans Hughes Professor of Law; and Gillian Metzger ’96, Harlan Fiske Stone Professor of Constitutional Law. The session was moderated by Benjamin L. Liebman, Robert L. Lieff Professor of Law and vice dean for intellectual life.
The wave of executive orders in the first weeks of President Donald Trump’s second term has raised so many legal issues that sorting them out is “like an admin law exam on steroids,” said Johnson.
Presidential executive orders are binding when they arise from the president’s inherent constitutional authority as commander in chief and head of the executive branch, Merrill said. Similarly, executive orders can arise from congressional legislation that gives the president discretion in certain areas, such as imposing emergency sanctions against another country. And some executive orders have sought to take advantage of issues generally unreviewable by the courts, he said, such as President Barack Obama’s decision not to enforce immigration laws in the Deferred Action for Childhood Arrivals (DACA) program in 2012.
However, executive orders have been overridden by the Supreme Court when it regarded orders as going beyond what previous law had authorized, using its major questions doctrine, Merrill said. “Whether the court will apply this in an equal-handed fashion to the Trump initiatives remains very much to be seen,” he added. “But it does suggest there is some capacity for the courts to intercede against these unilateral presidential initiatives, even though the [major questions] doctrine that would permit them to do that is a little bit novel and a little bit, in my view, perhaps questionable.”
Many of the orders are being challenged in court. “I think that there will be decisions reining in some of the more extravagant proclamations,” Merrill said. “The wild, wrecking-ball approach to things … will not sit well with the Supreme Court.”
The Trump administration’s executive orders “are all efforts to significantly, indeed dramatically, increase presidential power and to bring about a change in the governing constructs on executive authority,” Metzger said. “And I think they are also likely unlawful or at least raise some questions of questionable legality.”
In some cases, a court challenge is the likely goal of the order, she added. For example, Metzger said, the order freezing federal spending, though quickly rescinded, could result in a claim that the president has inherent power to impound funds, which would be at odds with the Impoundment Control Act, among other laws. The Impoundment Control Act of 1974 prevents a president from refusing to spend money appropriated by Congress.
“I don’t think that the U.S. Supreme Court would go for that argument,” she added. “It’s pretty well established that the power of the purse lies with Congress.” The court’s 2024 decision upholding the constitutionality of the funding of the Consumer Financial Protection Bureau (CFPB) “reiterated the breadth of Congress’s appropriations power,” Metzger said.
The president’s firing of a commissioner of the National Labor Relations Board is likely also designed to create a court test of the breadth of presidential authority, Metzger said. A 2020 Supreme Court decision that allows the president to fire the head of the CFPB shows that control of independent agencies is “an area where the Supreme Court has been responsive to presidential claims that congressional statutes limiting removal grounds are unconstitutional,” she said.
The Trump administration’s move to eliminate firing protection from a swath of civil service positions has also been challenged in court. Metzger said that while the executive order is a “pretty clear violation” of the Administrative Procedures Act’s requirements for overturning rulemaking, the Supreme Court has been receptive to upholding presidential authority to control personnel, “at least at the higher levels of the executive branch.”
Court challenges to the executive orders may fail, but a court decision upholding expanded presidential authority is different from an executive branch acting in defiance of the law, Metzger said.
“I would draw a distinction between the Supreme Court issuing a decision that changes the governing understanding of presidential power, and action by the president and executive branch that is a blatant disregard of governing statutes,” she said. “That’s lawless. That’s not something that we’ve tolerated in the past.”
Johnson spoke about the numerous recent executive orders that eliminate antidiscrimination requirements in federal contracts, limit transgender rights, and end diversity, equity, and inclusion (DEI) activities.
“What I was really struck by is that they [the executive orders] begin to announce or direct a completely different regime of civil rights. It’s trying to signal that the old regime is dead,” she said. “There will be new enforcement priorities, and a new conception of what is a legal civil right.”
She said that the executive actions targeting DEI could come into conflict with the 1964 Civil Rights Act. For example, Johnson cited the firing of two members of the Equal Employment Opportunity Commission as possibly violating the terms of the Civil Rights Act, which created the agency and whose commissioners serve five-year terms without any provision for removal. “It signals something about the importance of civil rights enforcement” that there is no removal process, she said. “It wasn’t even contemplated by the drafters [of the legislation] that this would happen.”
The idea of a president overstepping the bounds of legal authority is “something that bothers me and a lot of people who have the instinct to go to law school: ‘You didn’t do this the right way,’” Johnson said. “Process matters for a reason.”
About Lawyers, Community, and Impact: Launched in 2016, the series invites Columbia Law experts to talk about the most pressing issues of our time and brings deeper context and perspective to the work Columbia Law community members do both inside and outside the classroom.
