How Trump Pushes the Limits of Presidential Power in Early Orders

After President Trump left the White House in 2021, critics of his unconventional use of executive power asked Congress to tighten the legal limits on when presidents can unilaterally reshape the U.S. government with the stroke of a pen. But lawmakers largely did not act.

On Monday, when Mr. Trump took the oath of office to begin his second term, asserting a muscular vision of presidential power. He not only revived some of the same expansive understandings of executive power that were not addressed, but went even further with new claims of extensive and inherent constitutional influence.

Among a blizzard of executive orders, Mr. Trump instructed prosecutors for failing to enforce a law banning the popular social media app TikTok until its Chinese owner sells it. President Joseph R. Biden Jr. had signed the measure into law after it passed with broad bipartisan support and the Supreme Court unanimously upheld it.

Regardless of the law’s merits, the Constitution says that presidents “shall cause the laws to be faithfully executed.” Mr. Trump gave no clear explanation of how he has any legitimate power to instead suspend the law, making only a vague gesture toward his “constitutional responsibility” for national security, foreign policy “and other vital executive functions.”

Unilateral actions such as emergency declarations and executive orders cannot create new legal powers for a president. Instead, they are a tool by which presidents exercise legal authority they already have, either because the Constitution bestowed it on their office or because Congress passed a law creating it.

That said, there is often disagreement about the correct interpretation of the scope and limits of executive power. It is not uncommon for a president to use an executive order to take action whose legal legitimacy is contested, leading to legal disputes that ultimately end up before the Supreme Court.

It’s not clear that anyone opposed to suspending the TikTok law would have standing to sue. But many of Mr. Trump’s actions related to immigration law, making it very likely that legal challenges will follow and the legitimacy of his claims about executive power will land before judges.

In several orders, Mr. Trump his constitutional role as commander-in-chief of the military, portraying migrants as invaders while blurring the line between immigration law enforcement and military forces.

“As commander in chief, I have no higher responsibility than to defend our country against threats and invasions, and that is exactly what I will do,” he said in his opening remarks.

Among these orders, Mr. Trump declared that newly arrived migrants may not invoke a law allowing them to apply for asylum. As a basis, he said the Constitution gave him “inherent powers” to “prevent the physical entry of aliens engaged in an invasion of the United States,” in addition to citing a few vague provisions of immigration law.

Another such order directed the U.S. Northern Command, which oversees military operations in continental North America, to quickly prepare a plan for a “campaign” to seal the border “by repelling forms of invasion, including illegal mass migration, drug smuggling, people smuggling and smuggling, and other criminal activities.”

Mr. Trump and his advisers have talked about invoking the Insurrection Act to use troops as additional immigration agents at the border. But the order referred only to his constitutional power as commander-in-chief, raising the possibility that he envisions using troops for a military operation rather than acting as law enforcement.

Some of the orders were a return to executive power struggles that emerged under Mr. Trump’s first term.

On Monday, Mr. Trump a move from 2019 to declare a national emergency at the border. He also invoked one statute that allows presidents, during an emergency, to divert military funds to construction projects related to the emergency. His purpose, in 2019 and again now, was to spend more taxpayer money on a border wall project than lawmakers authorized.

Is there really an emergency that an expanded border wall would address that would justify bypassing the role of Congress in deciding where taxpayer money should go?

A wall does not solve the biggest border problem in recent years: the overwhelming number of migrants requesting asylum is flooding the system and leading to long backlogs of hearings. And over the past seven months, illegal crossings have fallen to their lowest levels since the summer of 2020, during the early stages of the coronavirus pandemic.

But the facts don’t matter much about whether or when it’s legal for presidents to invoke emergency powers, declarations governed by the National Emergencies Act of 1976.

This law does not precisely define the circumstances under which presidents can determine that an emergency exists, leaving them essentially unfettered to unleash necessary powers on themselves. But past presidents adhered to norms of self-restraint.

In his first term, critics challenged the legal legitimacy of Mr. Trump’s border wall spending, but the Supreme Court never resolved the dispute until Mr. Biden took office and canceled the projects. So any new legal challenge has to start from scratch.

In the wake of Mr. In Trump’s first term, House Democrats passed a bill in 2021 that would have tightened limits on the president’s use of emergency powers, part of a package of reforms they called the “Protecting Our Democracy Act.” But Republicans opposed the measure as a partisan attack on a president who was no longer in office anyway, making it dead on arrival in the Senate.

Mr. However, Trump’s absence from the presidency turned out to be temporary.

In the show of power after his return to office, he did too declared a national energy emergency then, as he said in his inaugural address, “we’re going to drill, baby, drill.” No president has previously declared such an emergency, giving him the power to suspend legal protections for the environment and expedite permits for new oil and gas projects.

The nation’s energy situation hardly seems like an emergency: the United States is produces more oil than any country ever hasin no small part because of the fracking boom and because of thousands of new permits to drill on federal lands issued by the Biden administration — surpassed mr. Trump’s first-term record. Prices for petrol, natural gas and electricity are relatively low compared to their historical levels.

But the order said that Mr. Trump had stated that the policies of the Biden administration had “driven our nation into a national emergency where a precariously inadequate and intermittent energy supply and an increasingly unreliable grid demand swift and decisive action.” He also mentioned a growing need for electricity to power computer servers for artificial intelligence projects.

Elizabeth Goiteina director of the Brennan Center for Justice’s Liberty and National Security Program, who has written extensively on the president’s emergency powers, predicted that many of Mr. Trump’s planned actions would be challenged in court.

“Emergency powers should never be used to solve longstanding problems like illegal migration that can and should be solved through legislation,” said Goitein, who was among those urging Congress to limit the president’s power. “The bad news is that Congress failed to pass reforms to the National Emergency Act that would have helped prevent such abuses.”

There is no dispute that Mr. Trump had legitimate authority to take other unilateral actions. The Constitution clearly gives presidents unlimited authority to pardon people for federal crimes or to commute their sentences, for example, so there is little doubt that Mr. Trump had the power to grant clemency to all of the nearly 1,600 people charged or convicted of crimes related to the Capitol riot.

But Mr. Trump appeared to advance new or expansive interpretations of legal authority in other ways.

He ordered his administration to make recommendations on whether to do so designate certain transnational gangs and drug cartels as “foreign terrorist organizations,” extending a law intended for groups that use violence for geopolitical and ideological purposes to criminal groups that, while also violent, are motivated by profit.

He also initiated the possibility of invoking Alien Enemies Act of 1798 deporting immigrants suspected of being members of drug cartels and transnational criminal gangs without a full fair hearing. The text of that law seems to require a connection to the actions of a foreign governmentso it is not clear whether the courts will allow Mr. Trump to invoke it to deny people deportation hearings.

Mr. Trump is also seeking to change the basic understanding of a provision in the Constitution’s 14th Amendment that grants citizenship to most babies born on American soil and “subject to the jurisdiction of the United States government.” This provision has long been understood to include infants born to undocumented parents.

In one orderinvoked Mr. Trump a theory developed by conservatives who want to curtail so-called birthright citizenship because they see it as a magnet for illegal immigration. On this rationale, the provision could be interpreted to not apply to babies whose parents are not US citizens or legal permanent residents, although visitors or undocumented immigrants are subject to the jurisdiction of state prosecutors if they break the law.

Mr. Trump directed agencies to refrain from issuing citizenship documents — such as passports and Social Security cards — to infants born to undocumented immigrants or to parents who are legally but temporarily visiting the United States, starting with births 30 days from now.

Hours later, critics, including a coalition of democratically controlled statesbrought to several courts challenges against it. Mr. Trump, the coalition argued, was trying to break “this well-established and long-standing constitutional principle by executive fiat.”

It was another legal claim that seemed destined to come before the Supreme Court.