Trump's executive orders already face pushback, legal challenges
President Donald Trump takes part in a signing ceremony in the President's Room of the U.S. Capitol following his inauguration ceremony Monday. (Photo by Melina Mara/The Washington Post)
Two hours after being sworn in, President Donald Trump sat down in the President’s Room at the U.S. Capitol to sign the first of nearly 100 promised executive orders - a historic and hand-cramping effort that he promised would begin “the complete restoration of America and the revolution of common sense.”
But his pen strokes also kicked off a round of objections from opponents, scholars and other groups that said he’d exceeded the limits of his presidential power. They included some critics who filed lawsuits before his signatures were dry, all but guaranteeing that his approval would not be the last word on Monday’s executive actions.
Trump’s wielding of the presidential pen spanned a wide gamut of American life and U.S. policy, each order aimed at showing that he had begun to make good on his campaign promises. He declared an immigration emergency and will soon surge troops to the southern border, he said. He began to dismantle government diversity and inclusion programs and limited the number of genders the government can recognize to two.
“In everything we do, my administration will be inspired by a strong pursuit of excellence and unrelenting success,” Trump said in his inaugural address before expounding on the orders. “We will not forget our country, we will not forget our Constitution, and we will not forget our God.”
The executive orders include some things that scholars and legal experts say may be out of the reach of the president’s pen and could be tied up in courts or legislatures for years, including ending birthright citizenship, a right embedded in the Constitution and bolstered by a Supreme Court ruling that grants citizenship to anyone born in the United States. Trump also wants to rename the Gulf of Mexico the Gulf of America. For some of the diciest efforts, the administration laid out little of its legal framework for what are certain to be battles sparked by Trump’s actions.
“It’s kind of an executive-order shock-and-awe campaign,” said Matthew Dallek, a political historian at George Washington University. “The shock and awe is to send a message to his critics and most importantly to his voters, his supporters, that he’s back, and that he is going to try to deliver on his campaign promises, and he’s going to do it aggressively.”
Trump’s initial turn to executive orders is particularly telling because the Republican Party controls the White House and both houses of Congress - in addition to having a conservative majority on the Supreme Court. But Trump has opted to use his executive-order power to both showcase his efforts and also to prevent them being gummed up by the pace of government, at least for now.
No matter what the ultimate legal outcomes, the executive orders - some of them signed in front of an arena full of cheering admirers Monday evening - give Trump’s supporters a sense of progress. They also shift the political pressure to Trump’s opponents if they try to undo the actions he promised his movement.
“He wants to move boldly and immediately. The acceleration of the use of executive orders allows presidents to declare policy victories on day one instead of the first 100 days - to be able to claim a policy agenda and claim it’s going into effect on day one when the eyes of the country are focused on him,” said Thad Kousser, a political science professor at the University of California at San Diego. “Presidents care not only what they pass, but what they’re seen standing for. … And even if it’s overturned by the courts or by the next president, you’ve made a clarion call for what you stand for and have delivered at least a temporary victory.”
Some of Trump’s actions faced immediate legal challenge. Before he had left the U.S. Capitol where he was inaugurated, three lawsuits raised legal questions about his appointment of Tesla founder Elon Musk to run the nongovernmental “Department of Government Efficiency.” The public interest groups behind the lawsuits say the “DOGE” panel violates laws on transparency for government advisory groups.
Shortly after winning a second term, Trump tapped Musk to lead DOGE in identifying potential spending cuts and government regulations that could be streamlined. The group has hired dozens of staffers to form a list of recommendations and is working in tandem with the administration and often communicating on the encrypted messaging app Signal.
In a complaint obtained by The Washington Post ahead of its filing, the public interest law firm National Security Counselors says that the DOGE panel is breaking a 50-year-old law, the Federal Advisory Committee Act, that requires advisory committees to the executive branch to follow specific rules on disclosure, hiring and other practices.
“DOGE is not exempted from FACA’s requirements,” states the lawsuit, written by Kel McClanahan, executive director of National Security Counselors. “All meetings of DOGE, including those conducted through an electronic medium, must be open to the public.”
It is also unclear whether Trump’s efforts to undo birthright citizenship can weather legal challenges, along with other immigration-related efforts. In a call with reporters before Trump was inaugurated, aides didn’t provide details about how the president’s new policies would fit into the web of existing laws and international treaties, or with ongoing litigation.
All modern presidents have used a flurry of executive orders to show proof of forward progress in the earliest moments of their tenure - and those efforts have not always been met with unmitigated success.
In 2009, newly inaugurated President Barack Obama signed an executive order to close Guantánamo Bay, the U.S. base in Cuba that had become a symbol of the excesses and injustices of the war on terror. Sixteen years later, the base remains open and 15 detainees are housed there. Obama’s administration had difficultly finding states willing to relocate terrorism suspects to prisons within their borders.
President Joe Biden ran on an unprecedented equity agenda and on his first day dictated an all-of-government effort to counter systemic racism. Now that he is a former president, some of his critics and allies say the enduring results of his Day 1 mandate are scant.
But Trump’s flurry of first-day activity threatens an expansion of executive power that critics have unsuccessfully sought to staunch since the tenure of Richard M. Nixon, observers say.
There will undoubtedly be pushback, but by that point Trump will have already claimed victory.
“The quip that he had about ‘I’ll be a dictator maybe on day one’ - he wants to deliver on that in that he wants to show that he is the supreme leader, that he is the most powerful person in the country, in the world,” Dallek said. “ … It’s creating the appearance of forward motion for him.”
Jeff Stein contributed to this report.
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