The Meaning of Article II and 'Executive Power' to Trump

During his first term, President Trump proclaimed, “I have an Article II, where I have the right to do whatever I want as president. But I don’t even talk about that.” In his second term, Trump has talked about Article II a lot. In doing so, he has asserted that he has the authority to violate statutes passed by Congress and orders and precedents of the courts.

In the two months since his inauguration, the government has taken the position in ongoing litigation that Trump’s actions prevail over statutes like the Civil Service Reform Act, the Impoundment Control Act, and the Administrative Procedure Act. Meanwhile, Trump has also openly ignored the Supreme Court’s decision in Humphrey’s Executor and a district court order limiting the deportation of individuals from Venezuela.

Aggregating the administration’s assertions about Article II reveals the challenge that Trump’s vision presents to constitutional order. He has asserted that Article II contains implied powers to remove all subordinates within the executive branch, control spending, punish national security threats, deport immigrants without due process, and ignore judicial orders related to foreign affairs. Many of these actions conflict directly with the express or implied will of Congress and the Supreme Court. At times, the president may have a colorable argument that a given statute does not apply to the current situation or that a given case recognizes an exception. The continual invocation of Article II in the face of interbranch conflict, however, suggests that the president believes Article II takes precedence over Article I and Article III.

Interpretations of Article II

Article II of the Constitution vests the “executive power” in the president. The meaning of the Vesting Clause hinges on one’s understanding of “executive power.” A narrow interpretation says that “executive power” describes only the power to execute the laws. Under this interpretation, Julian Davis Mortenson describes the Vesting Clause as an “empty vessel” that does not gain meaning until Congress actually enacts laws. The Trump administration clearly does not perceive Article II as an empty vessel.

A more expansive interpretation argues that the “executive power” contains a residuum of powers once possessed by the British Crown, which were transferred to the president during the founding. Adopting this interpretation, Steven Calabresi and Saikrishna Prakash describe the “executive power” as a “grab bag” that includes the powers that have always belonged to executives “in English and American history.” As a recent Office of Legal Counsel (OLC) opinion states, “Such authority is most commonly exercised in the foreign affairs area. But pockets of such inherent authority exist in the domestic sphere as well.” Certainly, Trump is not the first president to claim the existence of implied powers. Yet his interpretation of Article II often exceeds whatever implied powers have been commonly recognized by law.

Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer helps frame how we think about assertions of presidential power. Presidential power is greatest when the president acts pursuant to an express or implied authorization of Congress because the president possesses his constitutional powers plus those delegated by Congress. It is at its “lowest ebb” when the president takes actions that conflict with the expressed or implied will of Congress. In such cases, the president may “only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter.” In cases where Congress has not spoken, there is often a “zone of twilight in which [the president] and Congress may have concurrent authority, or in which its distribution is uncertain.”

The Power to Remove Subordinates

The Trump administration has invoked Article II to justify the removal of his subordinates. The Supreme Court has held that the president has at least some authority to remove appointed officers of the executive branch. In Humphrey’s Executor v. United States, however, the Supreme Court allowed Congress to restrict the removal of officers within independent agencies for cause. In two recent cases—Seila Law v. Consumer Financial Protection Bureau and Collins v. Yellen—the Supreme Court narrowed its prior precedent and prohibited removal restrictions in two agencies headed by single directors. Trump’s recent actions have openly violated Humphrey’s Executor and pushed the boundaries of the exceptions recognized in Seila Law and Collins.

Although Seila Law and Collins recognized that Humphrey’s Executor remains good law, the Trump administration has taken actions that blatantly ignore the case’s central holding. In Seila Law, the Supreme Court said, “Humphrey’s Executor permitted Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” Humphrey’s Executor itself upheld for-cause removal protections for the Federal Trade Commission (FTC). On March 18, Trump removed two FTC commissioners, ignoring the central holding of Humphrey’s Executor. The Trump administration may seek to argue that the modern FTC exercises “executive power,” whereas the FTC of 1935 did not. Such an argument, however, only seeks to justify the open disregard of Supreme Court precedent. The Supreme Court may overturn Humphrey’s Executor, but it has not done so yet.

Nevertheless, Seila Law and Collins still narrowed the meaning of Humphrey’s Executor. Both cases struck down removal protections for the directors of two agencies: the Consumer Financial Protection Bureau and the Federal Housing Finance Agency. One way to read Collins, in particular, is that removal protections for the sole director of an agency exercising executive power unconstitutionally restrict the president’s authority under Article II.

On Feb. 7, Trump removed Hampton Dellinger—the sole director of the Office of Special Counsel—from his position. The Office of Special Counsel is an independent agency headed by a single director and tasked with protecting whistleblowers. Like the directors of the Consumer Financial Protection Bureau and the Federal Housing Finance Agency, the Civil Service Reform Act of 1978 provides the special counsel with removal protections. Yet Seila Law explicitly distinguished the Office of Special Counsel from the Consumer Financial Protection Bureau. Collins declined to comment on whether the holding extended to the Office of Special Counsel. The administration has taken a broad interpretation of Collins, arguing that “Article II precludes Congress from placing limits on the President’s authority to remove principal officers of the United States who serve as sole heads of an Executive Branch agency.” Although Dellinger won a preliminary injunction in district court, the U.S. Court of Appeals for the D.C. Circuit stayed the injunction, concluding that the government was likely to succeed on the merits and allowing Dellinger’s removal to go forward. Dellinger ultimately dropped his case. The arguments advanced by Trump—whether ultimately correct or not—were a natural extension of the Supreme Court’s decision in Seila Law and Collins.

The administration has justified other removals, however, by suggesting that Seila Law and Collins left “two narrow exceptions” to the removal power in place: “one for members of multi-member commissions that exercise quasi-legislative and quasi-judicial power, and another for certain inferior officers with limited duties.” (Of course, the administration has flagrantly ignored these exceptions too with the removal of the FTC commissioners.) Outside of the Office of Special Counsel, the administration has argued that inspectors general do not fall within either of these exceptions and, therefore, are subject to removal by the president. Beyond the FTC, Trump has also removed three members from additional multi-member commissions that exercise quasi-judicial power: Cathy Harris of the Merit Systems Protection Board (MSPB), Susan Grundmann of the Federal Labor Relations Authority (FLRA), and Gwynne Wilcox of the National Labor Relations Board (NLRB).

Removals of appointees from the MSPB, FLRA, and NLRB offer a strained understanding of Seila Law and Collins. In Wiener v. United States, the Supreme Court extended its holding in Humphrey’s Executor to multi-member adjudicatory agencies. Collins explicitly did not revisit the holding in Wiener and seemed to acknowledge the “unique need for ‘absolute freedom from Executive interference’” for certain adjudicatory agencies. Even then, the MSPB, FLRA, and NLRB all seem to fall comfortably within the exception recognized by the administration’s narrow reading of Seila Law and Collins. All three agencies are multi-member commissions that adjudicate disputes between employees and their employers. Their predominant power is properly characterized as quasi-judicial rather than executive. Whether these adjudicatory agencies exercise sufficient “executive power” to forbid removal protections will likely be decided by the D.C. Circuit and then the Supreme Court.

By far the Trump administration’s greatest extension of the removal power involves the removal of civil servants who enjoy tenure and due process protections. The Trump administration offered Article II as the sole explanation for why it removed career officials from the Executive Office of Immigration Review. The executive order reinstating Schedule F (now Schedule Policy/Career) cites Article II as justification for why the president must have the authority to freely appoint and remove individuals who work in positions of a “confidential, policy-determining, policy-making, or policy-advocating character.” In a case opposing the removal of probationary employees, the government argued:

[T]he President has inherent constitutional authority under Article II to act as chief executive officer of the Executive Branch, determining how best to manage the Executive Branch, including whom to hire and remove, what conditions to place on continued employment, and what processes to employ in making those determinations.

Extension of the removal power to the civil service would upend the merit system that has governed federal employment since the Pendleton Act of 1883. By statute, an agency may remove an employee only “for such cause as will promote the efficiency of the service.” The Supreme Court has even held that the Fifth Amendment protects federal employees from removal without due process. The administration seems bent on challenging the civil service laws by arguing that removal protections for federal employees unconstitutionally constrain the president’s authority under Article II.

The Trump administration’s extension of Article II’s removal power to all subordinates within the executive branch represents a considerable power grab. Loosened removal protections would make it easier for presidents to remove federal workers following every presidential transition. Practically, presidents may retain employees who perform mundane tasks. Nevertheless, this interpretation pushes us toward the spoils systems—the appointment and removal of federal employees based on partisan loyalties—that governed the federal workforce throughout most of the 19th century.

The Power to Appoint Acting Officials

In addition to the power to remove, Trump has read Article II as providing a unilateral power to appoint acting officials. The administration has made this argument in two cases involving the designation of Pete Marocco as the acting president of both the African Development Foundation and the Inter-American Foundation.

The Appointments Clause of Article II provides that the president may “nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Officers of the United States.” Congress has given the president some additional powers if an appointed position suddenly becomes vacant. The Federal Vacancies Reform Act allows the president to select an acting official if the appointed officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” The act, however, does not apply to the African Development Foundation or the Inter-American Foundation, because they are multi-member government corporations.

In a recent OLC opinion, the Trump administration has advanced an interpretation of the Take Care Clause that allows the president to appoint acting officials. The Take Care Clause obligates the president to “take Care that the Laws be faithfully executed.” OLC advised the president that, “at least where that authority is not limited by statute, the President may act to designate an official to temporarily perform the duties of a presidentially appointed position where leaving that position vacant would have the effect of seriously impeding the agency’s functions, including the agency’s function of carrying out statutory obligations consistent with presidential directives” (citations and quotation omitted). In other words, the inability to appoint acting officials prevents the president from exercising his obligation to faithfully execute the law. OLC said that “questions about the President’s inherent power to designate officials to act in the place of a Senate-confirmed officer can and do arise throughout an Administration” but that the power is “particularly important during periods of presidential transition.” The power applies even when the president himself removes the actors because removal is often necessary when the agency fails to “adequately comply with the President’s directives.”

Anne Joseph O’Connell—an expert on the Federal Vacancies Reform Act and acting officials—described the appointment of Marocco as “so much more of an executive power claim than a lot of what they’ve done. Why have a confirmations process?” The scope of this alleged power to appoint acting officials remains unclear. OLC acknowledged that an acting official cannot serve “indefinitely” but did not provide a standard for evaluating how long an acting official could serve. The only time the Constitution envisions that the president may forego Senate confirmation for a principal officer is during a recess of Congress. Even then, it limits the duration of recess appointments to the expiration of Congress’s next session. Coupled with unfettered power to remove, the power to appoint acting officials may allow the president to circumvent confirmation by simply rotating through “temporary” officials.

At the same time, Trump has hired officials who seem to exercise the level of authority requiring Senate confirmation. Litigants have brought challenges against Elon Musk and his ability to direct spending and personnel throughout the federal government—actions that may make him a principal officer. The administration has maintained that Musk is simply a White House adviser who has no independent authority. In a recent order, a federal court stated, “If a President could escape Appointments Clause scrutiny by having advisors go beyond the traditional role of White House advisors who communicate the President’s priorities to agency heads and instead exercise significant authority throughout the federal government so as to bypass duly appointed Officers, the Appointments Clause would be reduced to nothing more than a technical formality.”

Moreover, Trump’s approach to removal and acting officials reveals a logical inconsistency in the administration’s interpretation of Article II. In the case of removal, the president has claimed that Congress cannot constrain the president’s inherent and implied power to remove subordinates. In the case of acting officials, OLC has claimed that Congress may pass laws, such as the Federal Vacancies Reform Act, to restrict the president’s inherent and implied power to appoint acting officials. The Trump administration’s arguments raise questions about under what conditions Congress may constrain the president’s implied powers.

The Power to Impound and Control Funds

Trump has continually argued that Article II allows him to impound and control funds appropriated by Congress. Impoundment is the act of not spending money appropriated by Congress. During his presidential campaign, Trump argued, “For 200 years under our system of government, it was undisputed that the President had the Constitutional power to stop unnecessary spending through what is known as impoundment.” David Barron and Marty Lederman provide historical evidence that presidents have generally viewed appropriations as permissive rather than mandatory but have made “no claim of any constitutional prerogative to ignore Congress’s will.” Trump’s nominee to serve as General Counsel of the Office of Management and Budget argued that the Vesting Clause allows the president to “decline to spend the entire amount of an appropriation,” because impoundment is necessary to control the implementation of federal programs and agency resource allocation.

The idea of a presidential power of impoundment conflicts with the Impoundment Control Act, which limits the president’s authority to refuse to spend money appropriated by Congress. Zachary Price recently published a wonderful primer on the act. Yet the Trump administration’s interpretation of Article II would render the Impoundment Control Act unconstitutional. Indeed, Trump has expressly stated that he would “take action to challenge the constitutionality of limits placed on the Impoundment Power by” the Impoundment Control Act. Elsewhere, Price has asserted, “the president has no constitutional power of impoundment.”

The Trump administration has paused or frozen spending on grants and contracts in many significant cases. Although the administration has maintained these “pauses” do not rise to the level of impoundment, it has maintained that Article II must grant the president the authority to freeze spending to ensure that the expenditure of funds comports with applicable laws and regulations.

In some cases, Trump has sought to tie impoundment to his authority over foreign affairs. In Personal Services Contractor Association v. Trump, the government argued that the president’s constitutional authority over foreign affairs authorized the president to determine “how foreign aid funds are used” and to freeze funds administered by the U.S. Agency for International Development (USAID). The government described the plaintiff’s assertion that “the Executive Branch is infringing on Congress’s power of the purse” as “misplaced,” because the assertion “fail[ed] to account for the President’s distinct interest in foreign affairs.” In a separate case, U.S. Conference of Catholic Bishops v. Department of State, the government made a similar argument regarding its decision to pause grants for refugee resettlement.

To support its position, the government cited an OLC opinion from then-Assistant Attorney General William Rehnquist that concluded that President Nixon did not have the constitutional power to impound funds appropriated for schools. In a single sentence, Rehnquist said, “Of course, if a congressional directive to spend were to interfere with the President’s authority in an area confided by the Constitution to his substantive direction and control, such as his authority as Commander in Chief of the Armed Forces and his authority over foreign affairs, a situation would be presented very different from the one before use.” Yet Rehnquist’s OLC opinion did not analyze under what circumstances such an interference would arise, and the statement was ancillary to the broader analysis of impoundment of funds for domestic purposes.

This case raises questions about the scope of “foreign affairs.” Although foreign aid obviously relates to foreign affairs, a significant portion of “foreign aid” actually goes to U.S. businesses that sell goods and services to USAID. American farms provide 41 percent of the food aid distributed by USAID. In the case of refugee resettlement, the grants provided to the plaintiffs were for services provided within the United States. In a preliminary injunction preventing the further dismantling of USAID, a federal judge said, “[T]he fact that an executive action has some nexus to Article II presidential powers, whether relating to foreign policy of the President’s role as Commander-in-Chief, does not necessarily render the action constitutional.” The entanglement of foreign affairs and domestic business in a globalized society raises questions about what policies would not impact the relationship between the United States and its partners.

The Power to Dismantle Federal Agencies

Trump has argued that Article II provides the president with the power to avoid waste, fraud, and abuse. In the past, Congress had granted significant authority to presidents to reorganize federal agencies. That authority lapsed in 1984. Trump has used this as a central justification for dismantling USAID.

A federal judge recently issued a preliminary injunction rejecting this power as allowing the president to dismantle an agency authorized by Congress. According to the court, when “the Executive Branch takes actions in support of the stated intent to abolish an agency, such as permanently closing the agency headquarters and engaging in mass terminations of personnel and contractors, those actions conflict with Congress’s constitutional authority to prescribe if and how an agency shall exist in form and function.” The court acknowledges that historical practice shows that the president has some ability to address issues related to waste and fraud, but “Congress alone holds the constitutional authority to take action to eliminate agencies that it has created.”

Trump’s proposed power to dismantle federal agencies conflicts with recent scholarship regarding the president’s obligations under the Take Care Clause. Gillian Metzger has argued that the Take Care Clause imposes on the president an obligation to supervise federal agencies and ensure their faithful management of the law. Jody Freeman and Sharon Jacobs suggest that attacks of administrative capacity run counter to these obligations. Elsewhere, I have argued that other constitutional provisions, such as the Fifth Amendment, impose a duty of faithful management on presidents.

The Power to Overturn Rulemakings

Trump has also invoked Article II to revoke regulations without following the procedures enumerated in the Administrative Procedure Act. How far the administration believes this power extends, however, remains unclear.

As one of his first actions, President Trump reinstated Schedule F, which would create an at-will workforce of “confidential, policy-determining, policy-making, or policy-advocating” employees. During the Biden administration, the Office of Personnel Management had sought to hinder the reinstatement of Schedule F by adopting regulations defining “confidential, policy-determining, policy-making, or policy-advocating positions” to mean non-career political appointments.

Ordinarily, an agency must repeal a rule by following the notice-and-comment rulemaking procedures contained in Section 553 of the Administrative Procedure Act. These procedures apply to rules adopted by the Office of Personnel Management. Yet the Trump administration argued that the procedures do not apply to the repeal of the Biden administration’s rule. In a memo from Acting Director Charles Ezell, he claimed that “President Trump used his authority under the Constitution and 5 U.S.C. §§ 3301 and 3302 to directly nullify these regulations.”

To what extent Trump believes that Article II allows him to unilaterally repeal regulations remains unclear. Ezell also appeared to justify the revocation based on the fact that §§3301 and 3302 delegate rulemaking authority to the president directly. Nevertheless, the Office of Personnel Management—not President Biden—enacted the rules at issue, and it must follow the procedures of the Administrative Procedure Act to repeal those regulations. The procedural conflict here raises interesting questions of administrative law. The broader constitutional arguments raise concerns that Trump may seek to nullify additional regulations without following the proper procedures—in other words, to ignore the dictates of statute.

The Power to Punish Individuals Perceived as Threatening National Security

Trump has claimed that Article II grants him the authority to identify national security threats and to punish individuals who threaten the national interest.

The clearest example of this power comes from an executive order revoking various rights and privileges of the law firm Perkins Coie. The order accuses Perkins Coie of manufacturing “a false ‘dossier’ designed to steal an election” while representing Hillary Clinton during the 2016 presidential campaign. It also accuses Perkins Coie of violating civil rights programs based on its own hiring policies. The order revokes security clearances and government contracts from the firm, bars its attorneys from entering federal buildings, and prohibits federal employees from engaging with Perkins Coie employees. Since then, the president has taken similar actions against Paul Weiss.

Perkins Coie has challenged the executive order in court. At one hearing, the government asserted that Article II provided the president with broad authority to protect the interests of the United States. It argued, “The president of the United States is authorized under the Constitution to find that there are certain individuals or certain companies that are not trustworthy with the nation’s secrets.” The judge asked whether Article II would allow the president to take the same punishing actions against Williams & Connolly for choosing to represent Perkins Coie in this case. The government said that the president could punish any person or business if their actions were deemed “inconsistent with the interest of the United States.”

Thus far, Trump has tied the power to punish to the national security interests of the United States. Yet the government has also asserted that the president’s determination of what constitutes a national security threat is nonjusticiable. By extension, it would presumably argue that once the president has labeled a person or business a threat, the power to punish would seem to permit the president to revoke any government benefits they enjoyed, restrict their movement, and prevent them from interacting with government officials.

It appears that Trump envisions using this power to retaliate against his political enemies ostensibly for national security reasons. Retaliatory intent is clearest in the case of Paul Weiss. In the order punishing Paul Weiss, the president said that he was taking the action because the firm “hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney’s office solely to manufacture a prosecution against me and who, according to his co-workers, unethically led witnesses in ways designed to implicate me.”

The Power to Ignore Congress on Foreign Affairs

Trump has asserted that Article II allows him to nullify statutes that conflict with his ability to manage foreign affairs—even when the Supreme Court has upheld those statutes.

During the Biden administration, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications, which prohibited entities from providing access to TikTok. Alan Rozenshtein has extensively documented the history of this legislation. The TikTok ban was set to go into effect on Jan. 19, 2025.

In TikTok v. Garland, the Supreme Court upheld Congress’s ban of TikTok. The case was decided before Trump was inaugurated. Then-President-Elect Trump filed an amicus brief, arguing that the legislation encroached on his authority under Article II. Trump provided three reasons that the act encroached on Article II. First, the act makes the determination that TikTok poses a national security threat, leaving no discretion for the president to make that assessment. According to Trump, this violates Article II because “the Executive, not Congress, is primarily charged with responsibility for the United States’ national security, its foreign policy, and its strategic relationship with its geopolitical rivals.” Second, the statute mandates that the president make key determinations “through an interagency process” and, therefore, these specific procedures unlawfully constrain the president. Third, “the statutory deadline for divestment falls on the day before President Trump’s inauguration, raising concerns that the Act effectively forestalls the incoming Administration’s ability to address the question.”

Following his inauguration, Trump nevertheless ordered the attorney general not to enforce the act. In the order, Trump explained, “I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions. ... The unfortunate timing of section 2(a) of the Act—one day before I took office as the 47th President of the United States—interferes with my ability to assess the national security and foreign policy implications of the Act’s prohibitions before they take effect.”

The Supreme Court has never held that a statute unconstitutionally interfered with the president’s Article II powers simply because it went into effect close to the inauguration day. Trump’s conception of Article II would seem to allow a president to effectively veto a lawfully enacted statute—at least in the foreign affairs context—simply because it was signed into law by a predecessor.

The Power to Deport

Trump has also asserted an Article II right to deport individuals from the United States while ignoring the procedures contained in the Immigration and Nationality Act. The Supreme Court has held that the Fifth Amendment’s Due Process Clause protects an alien subject to a final order of deportation, but the extent of protection depends on the situation.

On March 17, a district court granted a temporary restraining order that would prevent the administration from invoking the Alien Enemies Act to remove aliens associated with a Venezuelan gang from the United States. The Alien Enemies Act allows the president to remove “subjects of the hostile nation or government” “whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incurring is perpetuated, attempted, or threatened.” In a subsequent brief, the government argued that “Article II confers upon the President expansive authority over foreign affairs, national security, and immigration.” A rather striking portion of the brief states the following:

If anything, [the president’s] authority is heightened here. The Supreme Court has consistently noted that “[i]t is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” Thus, laws involving aliens are “implementing an inherent executive power.” (Citations omitted.)

In essence, the government has asserted that the president has an inherent authority to remove aliens and immigrants. The Alien Enemies Act merely codifies powers the president already possesses under Article II. A natural extension of this argument would allow the president to ignore the procedures outlined in the Immigration and Nationality Act.

The Power to Ignore Judicial Orders Related to Foreign Affairs

In the same case involving the Alien Enemies Act, the government argued that a judicial order could not constrain the president’s Article II authority over foreign affairs. Despite the temporary restraining order issued by District Court Judge James Boasberg, the government refused to turn around a plane carrying Venezuelan migrants on national security grounds.

In a notice to the court, the government said, “Federal Defendants object to this Court’s assertion of jurisdiction, including over the President’s exercise of powers vested in him by Article II.” The government then sought to vacate a hearing to assess whether the government had complied with the order. It argued that “the Court’s written injunction ... did not seek to interfere with the President’s Article II powers to conduct military operations overseas by directing the return of aliens associated with a designated foreign terrorist organization who had already been removed from United States territory.” It continued:

These inherent Article II powers, especially when exercised outside the United States, are not subject to judicial review or intervention. ... [J]ust as a court assuredly could not enjoin the President from carrying out a foreign drone strike or an overseas military operation, or from negotiating with a foreign power to coordinate on such an operation, nor could a court lawfully restrict the President’s inherent Article II authority to work with a foreign nation to transfer terrorists and criminals who are already outside the United States.

The government views Article II as authorizing the president to ignore judicial orders that intrude on the president’s power over the military and foreign affairs. As Steve Vladek said, “If the government is correct that these orders are legally flawed, it should be appealing them, not resisting them.” Coupled with the broad interpretation of “foreign affairs” that the administration has advanced in the impoundment cases, this newfound power to ignore judicial orders raises significant concerns about the willingness of the administration to comply with judicial decisions.

Beyond Article II arguments, Trump has continually threatened judges who rule against him. Following Judge Boasberg’s order, Trump posted, “I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!” Chief Justice John Roberts issued a rare rebuke of Trump’s statement, saying impeachment was not an appropriate response to the ruling. The will of the voters justifies neither neglect of the Constitution nor threats to judges.

Article II Without Guardrails

Trump has adopted an expansive understanding of implied powers under Article II. To be clear, Trump is not the first president to assert that the Constitution grants the president some implied powers—especially in the context of the military and foreign affairs. President Truman asserted that Article II granted him the authority to seize steel mills during the Korean War. In the resulting case, Youngstown, Justice Jackson famously said, “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” At times, the administration justifies the existence of these powers based on historical practice or arguments developed by OLC in previous administrations. Even then, Trump’s descriptions of Article II distort the historical record and use the actions and language of past presidents to argue for even more expansive understandings of presidential power.

Many of Trump’s assertions of Article II power occur in contexts where Congress has expressed an alternative preference. As Justice Jackson suggested in Youngstown, the president is weakest when he acts in contradiction to the will of Congress. Trump’s arguments distort the traditional paradigm of presidential power in two ways. First, the administration often asserts that neither Congress nor the courts have the power to constrain or check the president. It seeks to cast Article II as the sole source of these implied powers when, in reality, it is not clear which actors may exercise power in many of these areas. Second, the administration inverts Jackson’s paradigm. Whereas Jackson found that Congress’s authority would limit the powers of the president, Trump argues that the acts of Congress must succumb to exercises of presidential authority. Legislative supremacy succumbs to presidential supremacy.

The constitutional arguments advanced by the Trump administration are often amorphous. They cite vague statements from Supreme Court cases that are not wholly on point. Briefs mention “Article II” but rarely cite a particular clause or quote a particular phrase. The administration has stretched the traditional understanding of the president’s foreign affairs powers. In many cases, the reader is left to speculate about the precise scope and nature of the power the Trump administration has identified.

Whether these arguments hold at the Supreme Court or are permissible constructions of Article II is important but not my central thesis. More importantly, Trump’s vision of Article II—lawful or not—reveals how he intends to exercise power. According to Trump, any action that interferes with his “execution” of the law violates Article II. Congress cannot enact statutes that limit Trump’s ability to manage foreign affairs, federal employees, or the fisc. Due process and administrative procedure unlawfully constrain the president’s powers over foreign affairs, the military, and the execution of law. In some cases, this vision of Article II does not just conflict with legislation; it also conflicts with the plain meaning of other provisions of the Constitution. Trump’s Article II represents an unconstrained version of executive power.