The US Presidency: executive orders push legal bounds of authority
William Roberts, IBA US Correspondent Monday 3 February 2025
Arriving in Washington, DC, new US President Donald Trump immediately began pushing the legal boundaries of presidential authority.
At his inauguration inside the US Capitol on 20 January, the President declared he would usher in a new ‘Golden Age’ for America. He promptly staged an executive signing ceremony before thousands of his supporters who’d gathered in a sports arena, delivering on a campaign promise of ‘shock and awe’.
Trump has issued more than 65 executive orders and memoranda in his first two weeks in office. This wave of activity marked a return to his combative, chaotic governance style.
Critics argue Trump is advancing an authoritarian style with his unilateral decisions. Attempts at severe spending and personnel cuts have sown confusion and alarm inside federal agencies. The White House has said, meanwhile, that there’s a need to ‘streamline our gargantuan government to better serve the needs of the American people.’
However, several orders have almost immediately led to lawsuits, presaging a Supreme Court showdown over the limits of presidential authority. ‘Presidents are entitled to impose their priorities,’ says Michael L Novicoff, a Member of the IBA Litigation Committee Advisory Board. He advises separating politics from the law in assessing events in Washington.
‘Giving instructions and setting priorities for the executive branch is what a president is empowered to do and indeed is one of the things he’s elected to do,’ says Novicoff, who’s a partner at law firm Pryor Cashman in Los Angeles. ‘Executive orders, however, cannot be used to direct executive branch employees to simply defy existing law.’
Executive orders cannot be used to direct executive branch employees to simply defy existing law
Michael L Novicoff
Member, IBA Litigation Committee Advisory Board
One of the incoming President’s early executive actions was an attempt to revoke birthright citizenship for children born in the US. The 14th Amendment to the US Constitution enshrines citizenship to ‘all persons born or naturalised in the United States, and subject to the jurisdiction thereof.’ The President ‘simply telling the executive branch not to recognisre citizenship that is granted by the Constitution, or to apply an interpretation of the Constitution that the Supreme Court has rejected, would not appear to be an appropriate use of an executive order,’ Novicoff says.
The White House argues that ‘the Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”’
Twenty-two states and the cities of Washington, DC, and San Francisco as well as immigrant rights groups immediately filed lawsuits to block Trump’s order. A federal judge temporarily blocked the order on 23 January.
Much of Trump’s opening legal salvo is aimed directly at the US government’s role in the world. Trump issued an ‘America First’ foreign policy declaration and withdrew from the Paris Climate Agreement and the World Health Organisation. He paused almost all US foreign aid for 90 days, affecting about $68bn in programmes across 180 countries.
‘In the short term, we’re going to see a lot of pain,’ says Mary Ellen O’Connell, a professor of law at Notre Dame Law School in Indiana. ‘There is so much confusion. The sudden cut of foreign aid is going to hurt a number of very important programmes. It’s really very disruptive.’
Foreign aid is to be re-evaluated for alignment to Trump’s agenda, said Secretary of State Marco Rubio, who questioned whether the spending of money in this way made America safer, stronger or more prosperous.
How this matches the legislative intent of Congress is unclear. The funding has already been authorised under the Foreign Assistance Act 1961, which emphasises global interdependence and humanitarian ideals.
One of Trump’s first orders related to ‘America First’ trade policy, setting the stage for future tariff increases. ‘For President Trump, tariffs are about negotiating leverage on non-trade matters like immigration or fentanyl or something that relates to our national security,’ says Raj Bhala, Special Projects Officer of the IBA International Trade and Customs Law Committee. Judging by the past, the president’s rhetoric will include attempts to intimidate trade partners, says Bhala, who’s the Brenneisen Distinguished Professor in the University of Kansas Law School.
Eight of Trump’s executive orders signed on his first day together launched a sweeping plan to dramatically curtail immigration, deport millions and deploy the US military to secure the southwest border. ‘America’s sovereignty is under attack,’ Trump said, declaring a national emergency, which allows him to call up the military and order construction projects. ‘Our southern border is overrun by cartels, criminal gangs, known terrorists, human traffickers, smugglers, unvetted military-age males from foreign adversaries, and illicit narcotics that harm Americans.’
He directed the Immigration and Customs Enforcement (ICE) agency to begin making arrests of undocumented persons, reportedly demanding officers meet a quota of 1,200 to 1,500 arrests a day. Trump also ordered a new detention camp to be constructed in Guantanamo Bay.
The president gave his inaugural address surrounded by the heads of the richest, most powerful tech platforms in the world, including Elon Musk. Meta’s CEO Mark Zuckerberg, Amazon’s founder Jeff Bezos and Google CEO Sundar Pichai occupied coveted seats behind Trump inside the Capitol rotunda. Shou Zi Chew and Tim Cook, CEOs of TikTok and Apple respectively, were also there. Amazon, Apple, Google and Meta each reportedly gave $1m to Trump’s inaugural fund.
Musk, who pumped more than $200m into Trump’s election campaign, has been appointed to lead a new ‘Department of Government Efficiency’ (DOGE).
Indicative of the early chaos, an order by Trump’s Office of Management and Budget that froze all federal grants and loans was quickly rescinded after widespread confusion and a lawsuit.
Kim Lane Scheppele, a professor of sociology and international affairs at Princeton University, says Trump’s ‘giant flurry of legal actions’ amount to an assault ‘on democratic and constitutional institutions’. Scheppele, who has studied autocracies in Russia and Hungary, says they appear ‘to be reshaping the administrative state […] contravening or subverting the apparent mandate that agencies have from their authorising statutes.’
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