President Donald Trump’s moves to stymie, purge, and even dismantle administrative agencies represent an unprecedented assertion of presidential power over both Congress and the administrative apparatus of the federal government, argued four experts at Harvard Law School on Monday.
While Article II of the United States Constitution charges the chief executive with carrying out the law — which includes activity at administrative agencies such as the Department of Justice, the Department of Education, and the Environmental Protection Agency — these entities were created and are funded by Congress. Any president has considerable authority to influence what those agencies do. Since taking office, the Trump administration has cut congressionally-approved funding for federal programs, fired or laid off leaders and workers across various agencies, pledged to hobble agency activity, and frozen most foreign aid spending.
Some people approve of those actions; others do not. Many of them raise legal questions, say the Harvard Law experts.
Although some of the Trump administration’s recent activities could be considered within the realm of ordinary, if perhaps aggressive, presidential actions, others are clearly aberrations, argued Cass Sunstein ’78, the Robert Walmsley University Professor at Harvard.
In Sunstein’s view, these efforts fit into three categories. The first, he said, include actions “where something is done that many people don’t like and might be unlawful, but it’s within the domain of ordinary discourse.” In Sunstein’s opinion, this includes a January 20 executive order that encourages use of the domestic rather than global “social cost of carbon” as a consideration in federal permitting contexts.
A second category, which Sunstein called “deviant” (in the sense of a marked departure from settled understandings), comprises challenges to longstanding rules and norms. Some deviant actions are desirable and ultimately upheld, but some are not. In the general category, Sunstein includes efforts to fire heads of independent agencies — a move that has been defended by some scholars for decades but is contrary to settled law. “I think that should be declared unlawful, but in the Supreme Court, it could easily go the other way.”
Sunstein reserved a final category, “revolutionary,” for actions that both stray from settled understandings and are also “assaulting something fundamental.” Pointing to the attack on prevailing Jim Crow laws in the mid-20th century, he acknowledged that such a subversion is “sometimes a good idea.”
But, Sunstein continued, “I would not applaud the revolutionary steps we might be seeing [today].” Among those, he includes the notion that the executive branch does not have to obey decisions by the judiciary (not invoked, to date, by the Trump administration), that the president can impound federal funds without congressional authorization (also not explicitly invoked to date), or that he or she can “dismantle congressionally created agencies.”
Sunstein’s remarks came during a discussion moderated by Martha Minow, the 300th Anniversary University Professor, concerning the scope of executive power and the future of the administrative state. The event was the second in a Harvard Law series examining the first 100 days of President Trump’s second term.
Panelists included Sunstein; Jody Freeman LL.M. ’91 S.J.D. ’95, the Archibald Cox Professor of Law; and Jack Goldsmith, the Learned Hand Professor of Law, who together helped deconstruct the president’s approach to the federal government.
For her part, Freeman expressed grave concerns about the president’s attempts to take on the administrative state.
“The clear message is a message of unconstrained, unmitigated, unmoderated, presidential, unilateral authority,” she said. “The most muscular version I think we’ve ever seen.”
Freeman said she appreciated Sunstein’s system of classification but added that it is important to view the administration’s efforts cumulatively. That, she said, is “when the real picture of the impact sinks in.”
She offered a list. “A combination of a funding freeze on international aid plus domestic funding freeze [even on funds that are obligated or on contract], the firings … not just of independent agency heads, but also of career staff with their expertise across the federal government, from agencies like the USDA to the Food and Drug Administration to the Environmental Protection Agency … and then the firing, importantly, of career nonpartisan prosecutors in the DOJ perceived not to be sufficiently loyal, and the judge advocates general in the United States military.”
One of the most striking impacts, Freeman suggested, is the reduction or elimination of independent lawyering in the federal government “that is meant to counterbalance political decision making.” The result, she argued, is an extraordinarily empowered president, currently unchecked by Congress — a situation that she believes risks an “unbalancing of our traditional separation of powers.”
“It is really remarkable the extent to which the Trump administration has been trying to eliminate all the friction, to eliminate independent voices [inside the executive branch],” agreed Goldsmith.
He added that many people do not fully appreciate the usual constraints that help keep the executive branch accountable to agencies’ authorizing or constraining statutes. Notably, Goldsmith said, most agency actions are never subject to judicial review, making internal accountability mechanisms “vitally important.” But President Trump has moved to eliminate many of those checks, he said.
The origin of the president’s power of interpretation, Goldsmith said, is Article II, which gives the president the authority to carry out the law. Given the size and scope of the government — and the resulting number of legal interpretations required to execute agencies’ missions — presidents have historically delegated this authority to others, such as attorneys general or the DOJ’s Office of Legal Counsel.
President Trump is notably different, he said, deploying strict loyalty tests, firings, and internal directives to ensure that everyone follows the president’s views on law. “What we have is a system that is set up where the executive branch can act in accordance with the president’s whims, with apparently no legal constraint on that.”
And with seemingly little fear of legal consequences, Freeman responded. “What I think we see is a level of unconcern that is, itself, concerning,” she said. “The behavior suggests they’re prepared to take very big legal risks that I think prior administrations, Republican and Democrat, would have been worried about.”
Yet, Goldsmith said the judiciary — not Congress — would likely be where the action lies. “The courts are the only institution right now capable of calling the executive on what [Freeman] described it trying to do,” he said. “The action is ultimately going to be in the Supreme Court.”
He added that, despite the administration’s rhetoric about potentially refusing to abide by decisions it does not like, “my read is that they are complying with the orders.”
Sunstein said the fact that the courts are functioning properly serves as a source of optimism for all voters. “The legal system is fundamentally working. We have an adversary system in which some cases are being won by the administration, some cases are being lost, and it has a high degree of fidelity to our traditions at a time of unique pressure.”
Minow, the moderator, wondered if the sheer number of cases challenging the administration — at least 114, according to Just Security, a tool developed by New York University School of Law — could overload advocates or the courts.
“I think the legal system is fully capable of addressing the large number of cases. I’m not sure the Justice Department is,” Goldsmith responded. The administration is, he continued, “struggling with resources to keep up with the cases. They’re making lots of mistakes. They don’t have enough lawyers to cover these cases.”
What can’t keep up, Freeman suggested, are administrative agencies themselves, which are quickly being drained of expertise and institutional knowledge. “It’s far easier to dismantle, downsize, and restructure than it is to build back the expertise and morale.”
“Nobody wants to be a friend of the bureaucrats,” she continued. “But I am really defending the capacity of the government to do the things Congress has told it to do, like protect the safety of the food and drug supply, ensure the integrity of the nuclear arsenal, predict severe weathers like hurricanes to protect people from the worst.”
And that isn’t looking good, she said. “I’m very worried about the capacity to withstand what has been happening in only six weeks.”
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