The charge that a president is violating the Constitution can mean—at least—two different things. A president could be exercising a power he does not actually hold. Or he might be exercising a power he legitimately holds in a manner that itself violates the Constitution.
In a written version of remarks delivered at the symposium “The Constitutional Rights of Lawyers and Law Firms,” University of Chicago Law Professor William Baude suggests that many of the most significant constitutional questions raised by the second Trump administration fall within the latter category. He contrasts the president’s assertion of nonexistent powers—citing the birthright citizenship executive order and Trump’s unilateral suspension of the TikTok ban as examples—with abuses of “real executive powers”: exercises of authority, constitutional or statutory, that the president is legitimately empowered to wield.
In keeping with the symposium topic, Baude uses the president’s law firm executive orders as an example of the second category. Those orders alleged that specific firms engaged in racial discrimination and referenced the targeted firms’ associations with people and issues objectionable to Trump. The orders directed consequences for these practices and affiliations, including security clearance suspensions, government contract terminations, and limits on access to federal buildings.
Baude emphasizes:
These executive orders invoke real executive powers. The executive branch does have authority to grant and revoke security clearances. It has authority to make contracts and to administer the resources belonging to the United States. It has authority to enforce the civil rights laws, and to direct their enforcement against particular individuals and organizations. All of this is true even on quite stingy or whiggish views of Article II.
Nevertheless, he says, the law firm executive orders are “an abuse of power. They represent the misuse of real power for improper and illegitimate purposes.” In Baude’s view (and Cato’s), the orders are unconstitutional. And the courts reviewing them have agreed.
Then he makes an even more important point: “The thing about abuse of power,” Baude says, is that “it can actually be hard for the courts to stop it.” That’s because the Constitution may commit to a president the decision about whether or how to use his power. Or the action may have been taken pursuant to a statutory grant of discretion within which a president is at least purporting to operate. Judges are reluctant to risk the institutional consequences that might come from second-guessing the motivations of political actors.
That’s not to say that courts are wholly unable to act; the so-far successful challenges to the law firm executive orders are themselves evidence that government action taken overtly to punish speech can be meaningfully challenged. But when a president acts beyond his power entirely, courts have cleaner grounds on which to rule and the results are typically more predictable.
Courts’ comparatively limited ability or willingness to restrain presidential misuse of power does not, however, mean such actions must go unchecked. Congress has a number of tools, including removal, to hold a president to account when he abuses the authority with which he has been vested (often by Congress itself). More fundamentally, voters are the court of public opinion in judging an administration’s exercise of power and the quality of Congress’s supervision. That requires recognizing, as Baude does in closing, that the absence of a judicial remedy is not a verdict that no wrong has been done.
