Trump’s reach for power puts weighty debate before courts

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The concepts of governmental checks and balances and the separation of powers are customarily introduced in Grade 9 civics courses and then swiftly are assumed to be fundamental, unassailable elements of the government of the United States. But in Donald Trump’s second term they are moving from the classroom to the courtroom and, in recent days, have been prompting a fresh, vigorous and enormously consequential debate in the public square.

This new debate, accompanied by important disputes about the limits of presidential power, is more urgent than it has been in 100 years – with implications more significant than it has been in more than a century and a half.

Donald Trump’s reach for power, and his tests of the bounds of presidential prerogatives, have two antecedents, and even those comparisons are imperfect. One is Abraham Lincoln, who suspended habeas corpus, the constitutional guarantee of individuals’ rights to argue in court they are being held illegally. The other is Franklin Delano Roosevelt, who argued he needed “broad Executive power to wage a war against the [economic] emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.”

The question that will be weighed by the courts in decisions this year – and then by the voters in midterm congressional elections next year – is whether the threat Mr. Trump perceives from migrants, transgender people and diversity initiatives in the military and in universities, among other items, comprise an emergency as great as that faced by Lincoln (during the Civil War, when the territorial integrity of the country and the survival of slavery were in the balance) and Roosevelt (when severe economic distress during the Great Depression imperilled the survival of democratic capitalism).

The resolution of these questions in courtrooms and in voting booths will determine whether Mr. Trump’s actions are within his rights as head of the executive branch or whether he has stretched beyond established constitutional limits. At stake are Mr. Trump’s dismissals of top officials with time remaining in their terms, the firing of administrative law judges, the sweeping terminations of government workers with civil-service protection, the freezes on congressionally authorized spending and the shuttering of governmental agencies.

“It’s not new that the Supreme Court can and should define the limits of presidential power,” Laurence Tribe, a constitutional law expert at Harvard University, said in an interview. “What’s new is a president with no respect for these boundaries. He’s treating the Constitution as a plaything – as if it is up to him to define the limits of presidential power. He’s running around breaking things every 10 minutes.”

There also is a related question, quiet now, but potentially historically significant: Does Congress assert its rights, particularly in regard to agencies it created or spending initiatives it ordinarily sets out independently of the executive branch – or, given the President’s sway over the Republicans who control both chambers of Congress, does it remain passive?

This question has roots in the English Bill of Rights, where in 1689 Parliament limited the powers of the monarchy, and nearly a century later in 1787, when the American founders created an elegant equipoise among the executive, legislative and judicial branches.

All this is being considered at a time of unusual impatience if not contempt for government. Just last week, the respected Quinnipiac University poll found that only one in 11 Americans surveyed said they believed that the system of checks and balances was working very well. A majority thinks it was working either not so well or not well at all.

Mr. Trump claims he received a huge permission slip from the voters. “America has given us an unprecedented and powerful mandate,” he said in his 2024 election victory speech.

But since 1888, only two other presidents, John F. Kennedy (1960) and Richard Nixon (1968), won both the Electoral College and the popular vote with smaller margins than Mr. Trump’s 1.5 percentage points. In the four-way 1860 election, Lincoln finished about 10 percentage points over his closest rival, Stephen A. Douglas, and in the 1932 election, FDR finished nearly 18 percentage points ahead of Herbert Hoover.

In fact, Mr. Trump’s victory, far smaller than what Joe Biden recorded over him four years earlier (4.5 percentage points), was dwarfed by Mr. Nixon in 1972, when the 37th president was re-elected by 23.2 percentage points. The Trump victory roughly resembles the 1976 triumph of Jimmy Carter over Gerald Ford (2.1 percentage points), but he didn’t claim a mandate to create precedent-shattering actions.

In both his terms, Mr. Trump has maintained he has broad powers. In 2019, he contended that Article II of the Constitution gave him “the right to do whatever I want as president.” This month, referring to the national crisis he perceives, he argued, “He who saves his Country does not violate any Law.”

The Supreme Court may give the President broad deference in cases involving the dismissal of officials; courts generally resist telling presidents whom they can promote or fire.

But John Yoo, a University of California, Berkeley, law professor widely respected among conservatives, said in an interview that Mr. Trump wasn’t likely to prevail in questioning the Constitution’s birthright citizenship clause or to force universities and private corporations to abandon diversity, equity and inclusion (DEI) programs.

“He may try to end DEI in government, but he’ll have a harder time saying those doing business with the government also have to,” said Mr. Yoo, a former general counsel for the Senate judiciary committee and a Justice Department official in the George W. Bush administration. “The courts have long given government a free hand, but when it comes to ordering private corporations how to conduct themselves, the courts regularly defend them against the government.”