Sun Sentinel Palm Beach Edition
Trump initiatives could get benched
Experts cite history of courts curtailing executive overreach
WASHINGTON — Donald Trump is moving into a White House that has seen presidential powers markedly expanded by its previous two occupants.
George W. Bush used his power as commander-inchief to wage a global war on terror.
Barack Obama 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.
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 oneparty 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.
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 action 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.
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.”
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.
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. “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 Roberts. 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 v. United States, is sure to be cited in disputes over “sanctuary cities.”
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.
Once the new president appoints a new justice, the Supreme Court again will have a majority of justices who are Republican appointees.
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 strikebound steels mills during the Korean War.
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.
Adler, a libertarian, worked with conservatives to fight Obama’s executive orders. Now he expects to be joined by liberal lawyers sounding that theme.
“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.