The pushback has begun
It is illegal to unilaterally eliminate Constitutional rights, to end civil servants' non-political careers, or to seize funds already allocated by Congress.
Donald Trump is testing the facts of American civics and the scope of presidential authority under law, so we repeat (as we will likely do many times in the future): In the United States, rights enjoy full protection of law, even if they are not named in written law; powers do not exist unless they are clearly outlined in laws that abide by the Constitution.
Legal Personhood: The Constitution is the “supreme Law of the Land”, meaning no other law or legal action can supersede it. Neither the President nor the Congress can alter the Constitution without going through the formal amendment process, which requires greater support in Congress than regular legislation and formal approval of three-fourths of the states.
The President cannot strip people born in the United States of their right to citizenship simply by signing a piece of paper. What he “believes” is as immaterial as what he wants. The law governs, and it protects this right from intrusion by any person or institution.
The President must honor the 14th Amendment’s guarantee of equality before the law, for all. No person can simply will harm or degradation to come to anyone. No office-holder has the authority to strip anyone of rights guaranteed by the Constitution.
A federal judge has blocked the order attempting to strip some Americans of citizenship based on the place of origin and immigraton status of their parents, describing it as “blatantly unconstitutional”.
The People’s House: Article I of the Constitution gives power over spending to Congress. It is the national legislature, “the People’s House”, that decides what money is spent on what purpose, and allocates those funds for administration by the Executive. The President does not have legal authority to decide that an act of Congress is null and void, or to seize taxpayers’ allocated funds and redirect them to his friends and favored industries.
On Tuesday, January 28, Americans woke up to the news that overnight, the Office of Management and Budget had ordered a blanket freeze of all federal grants and loans, so they could be reviewed to determine whether the recipients comply with Trump’s personal ideological preferences. For several reasons, this action was illegal:
It violates Article I of the Constitution and attempts to usurp the role of Congress in controlling the budget and expenditures of the government of the United States and its services to the American people.
There is no Presidential authority to police the thoughts and beliefs of American citizens, local governments, or civil society organizations.
It violates several specific Constitutional rights, including Free Speech, Freedom of Religion, Freedom of Assembly, the Right against Unreasonable Search and Seizure, Due Process, and Equal Protection.
The order was so vague, it led to the shutdown of the Medicaid payments portal and discussions about suspension of small-business loans, grants to states that support policing, suspension of infrastructure projects, and the sudden shutdown of food assistance programs. The total value that might be seized by this unlawful order could be more than $2 trillion in taxpayer funds already allocated by law to the American people.
In a 1985 memo, John Roberts, now Chief Justice of the United States Supreme Court, informed the White House Counsel that a seizure of allocated funds would be unlawful. Roberts of the threat such an action would pose to the Constitutional order, writing:
“Our institutional vigilance with respect to the constitutional prerogatives of the presidency requires appropriate deference to the constitutional prerogatives of the other branches, and no area seems more clearly the province of Congress than the power of the purse.”
A federal judge has ordered a halt to this suspension of loans and grants, requiring that all related payments continue moving while the case is adjudicated to determine what, if any, authority the President has to conduct this kind of snap ideological review of expenditures.
The Civil Service: Throughout the 1800s, the federal government was shaped by a corrupt practice that became known as “the spoils system”, in which public servants were removed from their positions by new presidents, so they could install loyalists and reward supporters. The spoils system allowed for the open sale of public office and of the actions they would take, and it undermined effective and honorable service of the public interest.
The spoils system reached its breaking point when a deranged supporter of President James A. Garfield shot him, after he was refused a diplomatic posting to France as reward for his work on the campaign. Though President Chester A. Arthur—who became President when Garfield died of his wounds—had advanced in his career through the “machine politics” of the spoils system, he now sided with reformers.
President Arthur signed the Pendleton Civil Service Reform Act into law, removing the President’s authority to summarily dismiss all federal workers without cause. The stated aim of the legislation was to ensure that the American people would benefit from a civil service staffed by qualified professionals committed to the work and not to political parties.
President Trump has, during the first week of his return to the White House, sought to exert unilateral authority over the federal government, ordering stoppages of work, reassignments, and spending freezes, in direct violation of written law.
A major example of the emerging legal pushback came from the Inspectors General he tried to fire on Friday night. In a letter addressed to the White House Director of Presidential Personnel, Mr. Sergio Gor, the Chairperson of the Council of the Inspectors General on Integrity and Efficiency, Hannibal “Mike” Ware cited federal laws that make the order unlawful and recommended conferring with White House Counsel on the matter.
Inspectors General need to have independence, to be able to investigate alleged wrongdoing, even by very high-ranking officials. Regardless of whatever conditional immunity the President might enjoy for official acts, due to the Supreme Court’s ruling in Trump v. United States, Inspectors General may also need to investigate the legality of actions involving the President and how his orders are followed.
Leading Senators from both parties have also written to the White House demanding the law be followed and that proper, detailed, case-specific rationale be provided for each removal. Barring that, the President does not have authority to remove any of the Inspectors General.
Tracking Unconsitutional Actions
We provide select updates below, related to elements of this post. We are also tracking unconstitutional actions more broadly here. In the second week of Trump’s return to the Presidency, there is near constant news of so many extralegal actions by Trump, it is possible to say with evidence that the US is now living through an attempted administrative coup.
UPDATE—Wed, Jan 29, 2025
Trump blanket severance offer to all federal workers may be illegal
On Tuesday, January 28, federal workers were informed of an offer of “deferred resignation”, which would provide up to 8 months’ full compensation to workers who choose to resign, while allowing them to leave at any time between now and September 30, 2025.
Sen. Tim Kaine (D-VA) warned federal workers to be wary of the offer, saying “He doesn’t have any authority to do this” and noting that the funds for this offer have not been appropriated by Congress. Sen. Kaine warned workers they might never see the promised compensation, since the President cannot pay it until Congress allocates funds for this purpose.
Union representatives serving federal workers warned this unlawfully pressures career professionals into early retirement and will lead to chaos throughout the federal government and vital services Americans depend on, including law enforcement, healthcare, infrastructure, agriculture, food and drug safety, and Veterans Affairs.
Beyond these specifics, there is no law that authorizes the President to attempt to terminate or remove all federal workers. The move is suspected in part of being an attempt to set the precedent that the President does have control of all federal workers and can review their positions based on his ideological preferences.
The memo circulated to federal workers also includes provisions that violate federal law. For instance, anyone over the age of 40 is entitled by law to at least 21 days to review all aspects of any severance offer, but the “deferred resignation” memo gives workers only from January 28 to February 6 to accept the offer.
Anyone considering this offer, or who has questions about the status of their employment with the federal government, should consult legal counsel or relevant services or advisors with responsibility for labor rights.
UPDATE—Wed, Jan 29, 2025
The OMB memo attempting to seize trillions in allocated funds is rescinded
The White House has rescinded a memo issued by the Office of Management and Budget, which attempted to freeze all federal grants and loans. The attempt by Trump to seize control of trillions of dollars in taxpayer funds already legally obligated by Congress was halted by a federal judge, as nonprofit groups and state attorneys general sued, citing lack of any legal authority to take such an action.
The order had created a constitutional crisis, as Trump attempted to usurp the Article I power of Congress to control spending. In principle, this should resolve the issue, but there will now be serious legal questions to answer, including how the order was given to shut down the Medicaid payments portal, and who in the White House may be responsible for providing false information about that decision to government agencies and the press.
UPDATE—Wed, Jan 29, 2025
Trump removes General Counsel for National Labor Relations Board & Democratic EEOC Commissioners
In his attempt to purge the federal government of people he believes do not meet his ideological test, Donald Trump has ordered the removal of Jennifer Abbruzzo, the General Counsel for the National Labor Relations Board. The move is considered to be an attempt to intimidate staff at the agency, which has responsibility for supporting workers’ rights and resolving labor disputes in the best possible way.
Trump also ordered removal of two members of the Equal Employment Opportunity Commission, both of whom are Democrats and who are considering legal action. Charlotte Burrows said of the firings:
“Removing me, along with Commissioner Samuels, well before the expiration of our terms is unprecedented and will undermine the efforts of this independent agency to do the important work of protecting employees from discrimination, supporting employers' compliance efforts, and expanding public awareness and understanding of federal employment laws.”
UPDATE—Wed, Jan 29, 2025
USDA Inspector General forcibly removed after refusing unlawful dismissal
Five days after Donald Trump attempted to dismiss 17 Inspectors General (independent watchdogs who lead investigations into alleged fraud, waste, and abuse linked to agencies’ official activities), Phyllis Wong, the Inspector General for the US Department of Agriculture, was forcibly removed from her office, apparently on orders from the White House.
The Inspector General had reported to staff that the governing body for the Inspectors General found the dismissals to be unlawful and therefore without effect. There is concern that her removal is not only an abuse of power, but a sign that Trump plans to prevent the release of information about the emerging threat of a possible bird flu pandemic.
UPDATE—Thu, Jan 30, 2025
EPA has withdrawn contracted funds, in attempt to reverse IRA
The Environmental Protection Agency has sent a letter asserting authority to cut off payments and end contracts agreed as part of the implementation of the Inflation Reduction Act. This funding is appropriated by Congress, and is established for this purpose as a matter of law.
This appears to be another example of a US government agency unlawfully intefering with funding allocations, acting on an unlawful order from Donald Trump or others in his White House team. Because the funds were already under contract, there is a clear cause of civil action for affected parties, which is expected to result in further legal challenges.
Again, it is necessary to note: The President does not have legal authority to unilaterally override an act of Congress.
UPDATE—Fri, Jan 31, 2025
2nd Judge Blocks Trump’s attempt to seize federal funds
Siding with state Attorneys General, a second federal judge has blocked the Trump administration attempt to seize appropriated and obligated federal funds for vital services. PBS reports:
[Judge John] McConnell ordered the federal government not to “pause, freeze, impede, block, cancel, or terminate” funding promised to the states while the order is in place, unless any other laws came into play.
“The Court must act in these early stages of the litigation under the ‘worst case scenario’ because the breadth and ambiguity of the Executive’s action makes it impossible to do otherwise,” McConnell wrote.
Related:
