The initiation of this thread is prompted by BBG's find of the following fine and serious article, originally posted in the Trump Administration 2.0 thread:
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The Trump Executive Orders as “Radical Constitutionalism”
Much more than “test cases” may be at stake in Trump's aggressive claims of presidential authority
BOB BAUER AND JACK GOLDSMITH
FEB 03, 2025
President Trump looks at Russell Vought, who delivers remarks at the White House in 2019. (Official White House photo by Shealah Craighead)
Why do so many of President Trump’s multitudinous executive orders fly in the face of extant legal principles? Are they the result of incompetence? Is the administration laying the groundwork for test cases in an effort to expand executive power in the Supreme Court?
Below we assess a third possibility: the administration doesn’t care about compliance with current law, might not care about what the Supreme Court thinks either, and is seeking to effectuate radical constitutional change.
The third possibility sounds histrionic, which is not our usual posture. But it appears to be the view of Trump’s nominee to head the Office of Management and Budget, Russell Vought, who is one of Trump’s “most influential advisers,” who will be voted on for confirmation in the Senate soon, and who will play a central role in Trump’s executive orders, if he hasn’t already.
This post assesses Vought’s views on executive branch law compliance, examines how his views fit with the Trump approach to executive orders to date, and asks what administration lawyers might be doing in all of this.
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Vought’s Views
In May 2023, Vought complained at a talk at the pro-Trump think tank, the Center for Renewing America, that Trump’s policies in the first administration were thwarted because “the lawyers come in and say it’s not legal, you can’t do that, that would overturn this precedent, there’s a state law against that.”
Vought added that legal objections to presidential policies are where “so much of things break down in our country.” He provided a specific example: “a future president says, ‘What legal authorities do I need to shut down the riots,’ we want to be able to shut down the riots and not have the legal community . . . to come in and say ‘that’s an inappropriate use of what you’re trying to do.’” Vought added: “I don’t want President Trump having to lose a moment of time having fights in the Oval Office about whether something is legal . . . .”
We cannot know if, or the degree to which, Vought’s theory of governmental legal advice is guiding the Trump administration’s executive orders. Yet Vought’s theory fits many of the known facts. And the OMB, as we will explain below, has a vital role in executive orders.
Executive Orders and Legal Process
President John F. Kennedy’s Executive Order 11030, today embodied in a regulation, governs the process for executive orders inside the executive branch. For our purposes, two components of the process are important. First, the executive branch entity that proposes an executive branch order must submit it to the Director of the OMB (i.e. Vought, if confirmed), together with a letter from the originator of the EO “explaining the nature, purpose, background, and effect of the proposed Executive order or proclamation and its relationship, if any, to pertinent laws and other Executive orders or proclamations.”
If the Director of OMB approves the order, “he shall transmit it to the Attorney General for his consideration as to both form and legality.” The Attorney General has assigned this function, like many legal interpretation functions, to the Office of Legal Counsel. Career OLC attorneys expert in executive orders review the orders. These lawyers do not typically do full-blown legal analyses of the orders, as they would with a legal question for which OLC writes formal legal opinions. But they typically do a serious legal chop on the EO to ensure its legality, and with any EO of substance there is normally a great deal of back and forth to ensure that the facts in the EO are accurate and that the order is lawful. If the proposed order passes OLC muster, the Attorney General approves and transmits it “to the Director of the Office of the Federal Register, National Archives and Records Administration.”
The bottom line: By Executive Order and regulation, both still in force, the Justice Department must review the legality of the EO, and the Attorney General must approve it.
What’s Going On Inside the Trump Administration?
We do not know what legal process the New Trump administration is using to vet the legality of executive orders. But it does not appear that the executive order or regulation are being followed, or that DOJ or OLC is fully in the loop. Four pieces of evidence support this view.
First, many executive branch orders have serious legal problems that OLC typically would have raised legal doubts about. Jack listed just a few last week:
The TikTok ban delay reflects a controversial and not-obviously-lawful conception of presidential enforcement discretion. The withdrawal from the Paris agreement is contrary to prior executive branch views of presidential agreement-termination authority. Yesterday’s freeze of nearly all grants and federal loans, though nominally limited “to the extent permissible under applicable law,” foreshadows the much-telegraphed and almost-certainly-unconstitutional Trumpian Article II impoundment theory. Trump’s gambit to fire career civil servants rests on a conception of Article II that goes beyond the Supreme Court’s already-generous removal precedents. There are other examples of Article II overreach. And relatedly, several of Trump’s actions violate other provisions of the Constitution, such as the birthright citizenship order.
These examples are notable because one (birthright citizenship) defies an OLC opinion, another (constitutional impoundment) is contrary to another OLC opinion, a third (the Paris agreement withdrawal) reflects a view that OLC has found problematic (see pp. 8-9), and the others are in tension with or contrary to extant Supreme Court jurisprudence. And there are many other examples of EOs contrary to or in tension with governing law. It doesn’t appear as if these orders received OLC approval for form and legality. And if they did, the pattern raises questions about how OLC will function in this administration. OLC normally adheres to Supreme Court precedent, and though it sometimes reverses itself, it typically explains reversals in published opinions.
Second, Vought stated last May that his think tank, the Center for Renewing America, was “trying to build a shadow Office of Legal Counsel” to enable the president to avoid legal objections to his policies.
Third, the Trump 2.0 transition, unlike the Trump 1.0 transition, did not vet EOs with the Justice Department, but rather relied on “a team of lawyers from outside the Justice Department” in a “sign of Trump aides’ general distrust of the Justice Department,” according to the New York Times.
Fourth, at a January 29 White House press briefing, Press Secretary Karoline Leavitt was asked “who advised the president on the legality of telling government agencies that they don’t have to spend money that was already appropriated by Congress?” Leavitt’s answer was revealing: “The White House Counsel’s Office believes that this is within the president’s power to do it, and therefore, he’s doing it.”
This question was nominally directed at the OMB spending freeze memo. But the question of the president’s constitutional power to order spending freezes lurks behind other executive orders as well and is a theory we know the Trump administration is interested in pushing. This is an issue that OLC normally would have opined on, especially since the issue is of such momentous constitutional significance and because OLC (in a William Rehnquist opinion) has previously ruled on the matter. Leavitt, however, made no mention of DOJ or OLC. Her disclosure that the White House Counsel, David Warrington, delivered the decisive advice suggests that his office may have supplanted the Justice Department’s legal advisory function, at least on some major presidential initiatives in the EOs.
In sum, the plethora of legal problems in the EOs, the Vought shadow OLC idea, the reliance on outside lawyers instead of DOJ during the transition, and the Leavitt statement are four pieces of evidence that OLC, and the Justice Department more generally, are being sidelined in the legal review process for at least some executive orders, and for presidential actions more generally. It is evidence that would make sense of the apparent indifference to legal compliance in so many of the Executive orders.
We should note that if OLC and DOJ are being cut out or overruled in favor of a president-centered or White House-centered legal interpretation and review process, that is the president’s prerogative under Article II, though the process would defy EO 11030 and the regulation. Such an arrangement would be an extreme change of process from past administrations and would demand explanation beyond non-compliance with EO 11030.
Radical Constitutionalism
One way to look at the administration’s assault on legal barriers is that it is seeking to establish “test cases” to litigate and win favorable Supreme Court decisions.
But the typical test case is a carefully developed, discrete challenge to statutory or judge-made law with some good faith basis. The challenge may be based on changes that have occurred over time in the law, in the background facts, or in large changes in politics, which support a claim that the law should now be modified or reversed. And it is often an incremental program—one of test cases building on test cases.
The Trump executive orders might have some of these features, but in the aggregate they seem more like pieces of a program, in the form of law defiance, for a mini-constitutional convention to “amend” Article II across a broad front.
This pattern echoes a philosophy—“radical constitutionalis[m]”—that Vought laid out in a 2022 essay. The essence of radical constitutionalism is that “[t]he Right needs to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years and to study carefully the words of the Constitution and how the Founders would have responded in modern situations to the encroachments of other branches.”
Vought strongly implied that an element of radical constitutionalism is to instill fear in the Supreme Court that the presidency is prepared to resort to outright defiance of its decisions.
Vought interpreted Madison’s famous “ambition must be made to counteract ambition” idea to mean that the branches would have “a healthy fear of each other” that would “cause[] them to pause before encroaching” on another branch. He gave as an example John Marshall’s refusal in Marbury v. Madison to order Secretary of State James Madison to deliver William Marbury’s commission “ecause he was afraid Jefferson would order [Madison] not to and show the Supreme Court to be toothless.” Vought then noted that “Jefferson . . . gave us a glimpse of the posture that prevents encroaching powers.”
If this is the theory behind the executive orders—and again, we are speculating here based on the views of one hugely influential Trump advisor—then the orders are not merely setting up Supreme Court test cases. They are, rather, bombarding the Court with a wave of legal challenges about the proper scope of Article II (among many legal issues) with the aim of provoking a confrontation over the legitimacy of the existing legal order, at least with regard to Article II, and perhaps more broadly. And the administration might be planning to dare the Court to say “no” with threats of noncompliance.
The administration’s TikTok executive order can be seen as an early gambit in this direction. The Supreme Court unanimously upheld Congress’s ban on TikTok, and the ban came into effect before Trump became president. A day after the law came into effect, Trump became president and issued an Executive Order in which he instructed his Attorney General to not enforce the act for 75 days based on the flimsiest of justifications that the already-in-effect law denied him an opportunity to review it for national security concerns or negotiate a deal. More remarkably, the president ordered the Attorney General to inform the relevant private firms that “there has been no violation of the statute and that there is no liability for any conduct” in violation of the statute during the 75-day period (or after the effective date of the act and before the EO).
The TikTok EO is not a direct defiance of a Supreme Court judgment, but it is close. And it could be signaling things to come. Whether the administration would threaten defiance because it actually intended to ignore a Supreme Court judgment, or because it simply wanted to pressure the Court into favorable decisions, no one can know.
Where are Administration Lawyers?
All of which raises the question: Is Trump getting legal advice, and, if so, from whom?
It is noteworthy that while the administration has announced nominees for most top spots at the Justice Department, it has not yet nominated anyone for OLC. Former Florida Solicitor General Henry Whitaker was the acting head of OLC for at least the first few days of the administration. But it is not clear if he is still at OLC (his name was briefly on the OLC website but no longer is), or who is in charge there. Is OLC in the loop on the Trump executive orders? Is it signing off on the ones with obvious legal problems? Under what legal theories?
Similar questions arise about the role of the White House Counsel. Did Leavitt’s disclosure of the White House Counsel’s advice about the OMB freeze memorandum foreshadow a commanding role for this office and a marginalized OLC? We (and others) have written about the risks that the White House Counsel, even more than the Justice Department, may be expected to wear the “team jersey” and conform his or her legal advice to meet the president’s preferences or demands. Will this administration more directly and openly empower the White House Counsel’s Office to assume the role traditionally performed by OLC? Will the White House find a pliant OLC head to dissipate this potential conflict?
In the days, weeks, and months ahead, the White House Counsel and his staff, the Attorney General, the head of OLC and his or her team, and many other lawyers in this administration will have choices to make in meeting the president’s expectations and demands. They all understand that they have professional ethical obligations independent of whatever loyalty they owe to the president and the administration. They have also pledged a constitutional oath as well as an oath to conduct themselves “uprightly and according to the law” if they are members of the Supreme Court bar. And they have duties of loyalty to the institutions they are serving.
We have been in the legal hot seat in the White House and Justice Department, respectively. We understand the hard and often intractable choices that high-stakes governmental legal advice entails, and we do not envy the difficulties that lawyers advising this president face. It is also true that administrations sometimes legitimately test the validity of accepted legal principles in court to seek a new legal understanding. And the White House Counsel inevitably has an elevated role in the legal advisory process, often in tension with OLC, on issues the president cares about. All of this is “normal science” in the executive branch legal process.
But the theory and process of “radical constitutionalism” that Vought has floated go very far beyond these typical tensions and conundrums in the roles contemplated for senior government lawyers. If something approaching the Vought theory defines the new Trump administration’s legal process—and there are clues that it does—then no senior government lawyer with integrity should countenance or participate in it.
https://executivefunctions.substack.com/p/the-trump-executive-orders-as-radical
