George W. Bush used his power as commander-in-chief to wage a global war on terror, including by imprisoning foreign combatants at Guantanamo Bay in Cuba.
Barack Obama, stymied by a Republican-controlled Congress, used executive orders to combat climate change, extend deportation relief to immigrants in the U.S. illegally, require free contraceptive coverage for female employees and pressure schools to offer equal rights to transgender students.
But both ran into stiff opposition in the courts and saw some of their plans blocked.
Trump has promised to write a new chapter in presidential power as a strong executive who will get things done. “I alone can fix it,” he said at the Republican convention.
He has spoken of mass deportations, a ban on Muslims entering the country, targeted tariffs for employers who ship jobs overseas and, at times, has threatened to punish people — from Hillary Clinton to news reporters — who offend him.
Legal scholars say they are wary, even worried, by Trump and how he will use the powers of the president. But they also remain confident the courts will stand firm against serious abuses of power.
“I am very concerned about the ability of our constitutional system to check Trump’s excesses,” UCLA law professor Adam Winkler said. “He has expressed unprecedented contempt for the rule of law, and one of the major checks on Trump — the Congress — may not play its constitutional role because of one-party rule.”
But the courts, Winkler said, are “far more likely to maintain a commitment to the rule of law and to curtail Trump’s abuses.”
Georgetown law professor David Cole, who in January will become the ACLU’s national legal director, said he is “optimistic the courts will stand up against abuses of power” in the Trump era, citing the courts’ moderating impact on “war on terror” following the 9/11 attacks.
“We were in a national security crisis then, and Bush had a Republican Congress,” he said. “But the Supreme Court stood up and ruled against the president and in favor of the alleged enemy combatants.” He referred to a series of rulings between 2004 and 2008 that extended legal rights and protections to the prisoners at Guantanamo.
“It all depends on how far he pushes,” Cole said, “but if Donald Trump abuses his power, I think the courts will stand up to him.”
Virginia Sloan, president of the Constitution Project, said she has faith in judges. “Once they take the oath and become a judge, they value the institution of the judiciary and want to preserve the rule of law,” she said. “We don’t know where the Trump administration will go, but we can put hope in judges who will put politics aside.”
In his first days in office, Trump is expected to use his executive authority to undo policies set by Obama. Some can be reversed immediately, while others will take time.
For example, Trump can revoke Obama’s 2014 executive order that would have extended deportation relief and work permits to as many as 5 million immigrant parents who had legal children in the United States, but were themselves here illegally. A federal judge in south Texas had blocked that order from taking effect, and a deadlocked Supreme Court left the decision in place.
The legal dispute, which is separate from Obama’s 2012 deportation-deferral program for so-called Dreamers who came to the U.S. illegally as children, turned on whether the president had the authority under the deportation laws to extend temporary relief and work permits to millions more immigrants.
Similarly, the new president and his appointees can revoke a “guidance letter” from Obama’s Education Department on May 13 that said schools and colleges must treat transgender students in accord with “their gender identity instead of the sex they were assigned at birth.”
The letter effectively required schools to permit transgender students to use the bathroom of their choice. But the Supreme Court blocked implementation in one dispute arising in Virginia. If Trump rescinds the letter, the case may be dropped.
Trump’s appointees at the Health and Human Services Department can revise or revoke regulations enforcing the Affordable Care Act that required employers to pay for a full range of contraceptives. Those regulations spawned a series of court battles, including two that reached the Supreme Court, over whether faith-based groups or employers could refuse to pay for certain contraceptives based on their religious beliefs.
Under Obama, the Environmental Protection Agency adopted regulations to limit carbon emissions from power plants and to protect waterways from pollution, but both were put on hold by judges acting on lawsuits filed by Republican-led states. Trump has chosen one of those state lawyers, Oklahoma’s Atty. Gen. Scott Pruitt, to head the EPA and undertake the job of repealing those regulations.
But the Trump administration soon may run into similar lawsuits, this time coming from blue states or from civil libertarians. States like California that have expanded their health insurance under Obama’s plans could fight cutbacks or changes ordered by the new administration. Other lawyers are watching in case the new administration attempts to punish or fire civil servants who disagree with its positions, or penalize individual companies for transferring jobs abroad.
“Any of those could prompt a legal challenge,” said Jonathan Adler, a law professor at Case Western in Cleveland. “If the Trump administration tries to exert broad executive authority, I’m guardedly optimistic the courts will stand behind the relevant precedents.”
Those precedents include strong checks on federal power written by the late Justice Antonin Scalia and Chief Justice John G. Roberts Jr. In 1997, the Supreme Court struck down part of the Brady Act that required police to conduct background checks on gun buyers because, Scalia said, the Constitution does not permit federal authorities to “commandeer” state or local officials, or to require them “to enforce a federal regulatory program.” That precedent, in Printz vs. United States, is sure to be cited in disputes over “sanctuary cities.” In 2012, Roberts cited the same principle in ruling that states may go their own way and refuse to expand the Medicaid program, as called for by the Affordable Care Act.
Still, legal scholars predict Trump will test those limits. “He is certainly going to stretch the boundaries of executive power,” said Neal Devins, a law professor at the College of William and Mary who has written about the history of presidential power. “Every president seems to do that. They always claim they have the authority to pursue their policies. And given the rhetoric of his campaign, Trump may feel a need to act unilaterally to show he is a strong president.”
Once the new president appoints a new justice, the Supreme Court again will have a majority of justices who are Republican appointees. And Trump could create a more solidly conservative high court if he replaces one or more of the liberal justices.
But even so, Trump could run into trouble if he pushes too far. In 1952, all nine justices were Democratic appointees, but the Supreme Court struck down President Harry Truman’s seizure of the strike-bound steels mills during the Korean War. The president had no such constitutional authority, the court ruled.
And in 1974, a unanimous court forced President Richard Nixon’s resignation when it ruled he must turn over his White House tapes to a special prosecutor. The president was not above the law, the justices said.
Adler, a libertarian, often worked along side conservatives to criticize Obama’s use of executive orders. Now he expects to be joined by liberal lawyers sounding the same theme.
“There are reasons to be concerned. Donald Trump has not had political or government experience, and he’s not demonstrated an understanding of what the chief executive can and cannot do,” he said. “So I hope my worst fears don’t come to pass, and we can have less partisan debate over the scope of executive power.”
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