The Trump Executive Orders as “Radical Constitutionalism” by Jack Goldsmith
Much more than “test cases” may be at stake in Trump's aggressive claims of presidential authority
Why do so many of President Trump’s multitudinous executive orders fly in the face of extant legal principles? Are they the result of incompetence? Is the administration laying the groundwork for test cases in an effort to expand executive power in the Supreme Court?
Below we assess a third possibility: the administration doesn’t care about compliance with current law, might not care about what the Supreme Court thinks either, and is seeking to effectuate radical constitutional change.
The third possibility sounds histrionic, which is not our usual posture. But it appears to be the view of Trump’s nominee to head the Office of Management and Budget, Russell Vought, who is one of Trump’s “most influential advisers,” who will be voted on for confirmation in the Senate soon, and who will play a central role in Trump’s executive orders, if he hasn’t already.
This post assesses Vought’s views on executive branch law compliance, examines how his views fit with the Trump approach to executive orders to date, and asks what administration lawyers might be doing in all of this.
Executive Orders and Legal Process
President John F. Kennedy’s Executive Order 11030, today embodied in a regulation, governs the process for executive orders inside the executive branch. For our purposes, two components of the process are important. First, the executive branch entity that proposes an executive branch order must submit it to the Director of the OMB (i.e. Vought, if confirmed), together with a letter from the originator of the EO “explaining the nature, purpose, background, and effect of the proposed Executive order or proclamation and its relationship, if any, to pertinent laws and other Executive orders or proclamations.”
If the Director of OMB approves the order, “he shall transmit it to the Attorney General for his consideration as to both form and legality.” The Attorney General has assigned this function, like many legal interpretation functions, to the Office of Legal Counsel. Career OLC attorneys expert in executive orders review the orders. These lawyers do not typically do full-blown legal analyses of the orders, as they would with a legal question for which OLC writes formal legal opinions. But they typically do a serious legal chop on the EO to ensure its legality, and with any EO of substance there is normally a great deal of back and forth to ensure that the facts in the EO are accurate and that the order is lawful. If the proposed order passes OLC muster, the Attorney General approves and transmits it “to the Director of the Office of the Federal Register, National Archives and Records Administration.”
The bottom line: By Executive Order and regulation, both still in force, the Justice Department must review the legality of the EO, and the Attorney General must approve it.
What’s Going On Inside the Trump Administration?
We do not know what legal process the New Trump administration is using to vet the legality of executive orders. But it does not appear that the executive order or regulation are being followed, or that DOJ or OLC is fully in the loop. Four pieces of evidence support this view.
First,****
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