New Article: Abuse of Power in the Second Trump Administration

A short piece on the law firm orders

Last fall, I spoke at a symposium at the University of St. Thomas Law School on The Constitutional Rights of Lawyers and Law Firms, focused especially on the executive orders against various law firms issued by the Trump administration. I’ve now posted a draft of my remarks from the symposium, titled Abuse of Power in the Second Trump Administration.

Here’s how the piece begins:

I’m going to begin with the question that Mike Paulsen asked me when he first invited me to this symposium: “Aren’t the law firm executive orders the most unconstitutional thing this administration has done so far?”

My immediate answer was “no, that’s the birthright citizenship executive order.” The birthright citizenship order directly contravenes an explicit provision of the Constitution—that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The order contravenes the original meaning of that Clause of the Fourteenth Amendment, and also liquidated constitutional practice. And it does so on a subject where the President has no authority anyway. The President has no authority over naturalization or over national jurisdiction.

Or perhaps I could have said the executive suspension of the TikTok Ban. There the administration announced the suspension of a law passed by bipartisan majorities of Congress and upheld as constitutional by the U.S. Supreme Court. Without even purporting to find that the law is unconstitutional, the administration announced that it just wasn’t going to enforce it, which violated the constitutional obligation to “take care that the laws be faithfully executed.” And worse, the administration also promised that nobody could be penalized or held liable for their actions during the period of the purported suspension. While there is plenty of debate about the scope of enforcement discretion generally, and federal enforcement discretion specifically, a categorical and prospective waiver of a civil law, accompanied by get-out-of-penalty-free cards is the opposite of the constitutional obligation.

The law firm executive orders are in important respects not like the birthright citizenship order or the TikTok Ban suspension. They involve the use – and abuse – of real executive powers, rather than the assertion of non-existent powers. And in this sense they are more emblematic, more representative, of the constitutional questions raised by this administration.

Indeed, one of the distinctive patterns of the Trump Administration is the use – and abuse – of a broad range of constitutional and statutory powers to reward the friends and punish the enemies of the regime. . . .

You can read the whole (short) thing here.