Trump Is Breaking Things First And Trusting That Congress, Courts Will Get On Board Later

For recent presidents armed with congressional trifectas, the beginning of a term was an urgent, sometimes heady, time. 

Barack Obama used his to pass an economic stimulus package and the Affordable Care Act. Donald Trump pushed through a trillion-dollar tax cut. Joe Biden passed sweeping COVID-19 relief, along with significant chunks of his Build Back Better framework that included legislation on infrastructure and climate change.

In Trump’s second administration, you could be forgiven for forgetting that his party also controls Congress. While congressional Republicans toil over basic, must-pass appropriation legislation and profess indifference to Elon Musk’s seizure of their spending powers, Trump has all but ignored his legislative allies in favor of acting aggressively, destructively, often illegally, by himself.

“It’s something really remarkable: Republicans have control of the presidency and both houses of Congress, and nonetheless Trump seems to have no interest in legislating or following procedures that would be easy to comply with,” Blake Emerson, professor of law and political science at UCLA, told TPM. “He has a desire for breakneck speed and, as he said in a tweet, ‘I don’t need to follow the law, I can do what I want.”

“A contempt for the law and the separation of powers is deeply ingrained in the Trump administration,” he added.

Trump is using his supposed “mandate” not to shepherd priorities through a Republican Congress completely under his thrall, but to smash huge swaths of the federal government. There’s little careful pinpointing, deliberative shaping of test cases to further the right-wing conception of total presidential power. Instead, his and Musk’s sledgehammer has swung indiscriminately, already resulting in a flurry of litigation, embarrassing mistakes and the purposeful immiseration of thousands of civil servants. 

Even if his White House hadn’t posted an image of Trump as king, it’s clear that he expects impunity for his actions, for his handcrafted Supreme Court to reverse engineer decisions that bless his mess. 

Nowhere is that clearer than in his treatment of independent agencies such as the National Labor Relations Board, the Equal Employment Opportunity Commission and the Merit Systems Protection Board. Agencies like these, overseen by multi-member boards and commissions, the members of which serve staggered terms, are the last bastions of true independence in the executive branch. Congress created these leadership structures in an attempt to insulate these agencies from presidents and partisanship; boards are made up of a mix members from different parties who serve overlapping terms of more than four years, and, most importantly, have removal protections. The Supreme Court has repeatedly upheld these protections, insulating agency leaders from at-will firing by the President. 

“That was understood to be the law for nearly 85 years,” Peter Shane, a leading scholar in U.S. constitutional and administrative law, told TPM with a wry chuckle. 

Trump, in his first month in office, has flouted those laws: He has indiscriminately fired Democratic members of these multi-member boards, leaving the agencies paralyzed without the quorums necessary to operate. At least two of these members — Gwynne Wilcox of the NLRB and Cathy Harris of the Merit Systems Protection Board, each of whom had multiple years left on her term and was fired without pretense of fulfilling the strict criteria under which they can be dismissed — have brought their lawless firings to federal court. 

Harris, the fired MSPB member, won at the district court level, where a judge granted her a temporary restraining order “declaring her removal from office to be unlawful, declaring that she remains a member of the MSPB, and enjoining Defendants from treating her as having been removed.” The Trump administration has already appealed that decision. 

Trump’s firings run afoul of one particular Supreme Court precedent. In 1935, a unanimous Supreme Court ruling — Humphrey’s Executor — found that then-President Roosevelt could not remove a member of the Federal Trade Commission for a reason other than those listed in the Federal Trade Commission Act. In other words, it reaffirmed Congress’ authority to limit the President’s removal power — authority the Trump administration is now squarely targeting. 

“Because the President’s action was plainly illegal under existing law, the only path to victory for the President is to persuade the Supreme Court to overrule Humphrey’s Executor and to adopt a new, more aggressive vision of presidential power that would effectively abolish independent agencies in the United States,” lawyers for Wilcox, the fired NLRB member, wrote in a filing.

The Supreme Court, in recent years, has chipped away at other types of independent agencies, ruling in 2020 that such agencies with a single head — including the Consumer Financial Protection Bureau — cannot have for-cause protections. So far, the Court has avoided doing the same to agencies led by multi-member boards.

Trump is being guided both by his own power lust and the longtime aims of the conservative legal world, which has explicitly pushed for overturning Humphrey’s Executor and removing the last protections for independent agencies. 

“The next conservative Administration should embrace the Constitution and understand the obligation of the executive branch to use its independent resources and authorities to restrain the excesses of both the legislative and judicial branches,” declared Project 2025, the Heritage Foundation’s guide to bringing the executive branch under the President’s control, adding: “The next conservative Administration should formally take the position that Humphrey’s Executor violates the Constitution’s separation of powers.”

The Trump administration followed the Heritage Foundation’s roadmap. In a letter to Sen. Dick Durbin (D-IL) earlier this month, the acting solicitor general wrote that the Justice Department will no longer defend the removal protections in court. 

“To the extent that Humphrey’s Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President’s behalf, and which has already been severely eroded by recent Supreme Court decisions,” acting SG Sarah Harris wrote.

The wide array of legal experts TPM spoke with were doubtful that the conservative majority on the Supreme Court would ultimately hold the line and repudiate Trump in this latest effort to bring the entire executive branch under his sole control. Their only glint of optimism stems from a hope that the Court will be too afraid of demolishing agency independence in a way that could unleash macroeconomic instability by allowing a partisan takeover of the Federal Reserve, the independent central bank which, due to its leadership structure, sits in this category alongside the NLRB and MSPB. 

Trump, shrouded in confidence from the Court’s presidential immunity decision last term that granted him near-total protection from legal culpability for his behavior in office, is acting on the implications of that decision. He’s marauding through the executive branch like a king who who can act indiscriminately, comfortable in the knowledge that the Supreme Court will retroactively legitimate his path of destruction and that his congressional allies will clap along. 

“There’s a cultish attachment to Trump as a person, benefitting from the underlying theoretical perspective conservative legal scholars and judges have developed,” Emerson said.