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Checking A Presidential Bully

Do Congress and the courts have adequate tools to rein in Trump’s scattershot use of executive power?

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[This is a guest blog from a friend and colleague, Abner S. Greene, who is the Leonard F. Manning Professor at Fordham Law School and has been following the constitutional separation-of-powers issues at the heart of many of the current cases involving the scope of President Trump's powers for many years.]

Donald Trump's aggressive use of executive power in his second term threatens to upset the balance of power between President and Congress, and although courts have pushed back against Trump's excesses,[i] up-front hurdles and back-end limits render courts an imperfect check.  In this essay I will describe an argument I made 30 years ago about the problem of expanded presidential power, explain the hurdles facing my suggestions for a better balance of executive-legislative power, discuss the limits of congressional power to check an unhinged President, and outline some difficulties with relying on courts to save the day.

In 1994, I published a law review article called "Checks and Balances in an Era of Presidential Lawmaking."[ii]  I examined the records of the 1787 constitutional convention and looked closely at the Federalist Papers.  From these materials, I concluded that "the framers were overwhelmingly concerned with either political branch aggrandizing its own power without sufficient checks.  To the extent that there is any 'original understanding' of the division of power between the President and Congress, it is that both are to be feared, neither is to be trusted, and if either one grows too strong we might be in trouble."[iii]

The article than zoomed forward to the post-New Deal era, where we have seen an enormous expansion of presidential power, sometimes from congressional delegations of power but other times without clear constitutional or statutory authorization.  Some of these presidential power-grabs are increases in foreign affairs or war power (e.g., attacking foreign nations without congressional authorization[iv]), while others are exercises of domestic policymaking without congressional approval, for example, dismantling a cabinet department, which one would think needs a statutory basis.[v]  In part to provoke discussion, I referred to such domestic policymaking actions – which seem to have the force of law – as lawmaking.  Understanding modern presidential power assertions in this way helps us see how far things have come since 1787.

I then examined several ways in which we might bring the Congress-President relationship back into the kind of balance the framers envisioned.  One angle was to support congressionally created independent agencies, where the heads may not be fired by the President except for good cause.  But in the intervening 30 years, the Supreme Court has increasingly (and incorrectly)[vi] cut back on Congress' power to create such agencies, asserting that they improperly take executive power from the President.[vii]  Another angle was to argue for congressional power to act through bicameralism (i.e., majority support in both houses of Congress) but not presentment (i.e., without need to present a Bill to the President for his approval and signature), in situations where the House and Senate deem a presidentially supported regulation beyond the scope of statutory delegation.[viii]  This would involve overruling INS v. Chadha,[ix] which nixed such a "legislative veto"[x] for not following proper Article I, section 7 process,[xi] and although I still support this move as a proper translation of how the framers would have wanted balanced power in today's world, I recognize that the U.S. Supreme Court is unlikely to overrule Chadha.[xii]

Although Chadha has been mostly important for taking away unilateral congressional power to reject administrative regulations, we should appreciate that it also stands in the way of what could be an effective congressional check on Trump.  Congress has limited power to respond to a President who behaves as a bully by issuing commands without authority.  It can hold hearings.  It can negotiate with the President over whether to amend or repeal extant legislation, and it can similarly negotiate with him about appropriations moving forward.[xiii]  Sometimes – rarely – it will have veto-proof majorities to insist on its priorities.  But what it cannot do is respond by itself to presidential orders that appear to be unauthorized.  This is sometimes misunderstood, as in when we hear someone say "Congress is feckless!  It should do something about Trump!  Where are those civic-minded Republicans?"  Maybe the person saying this is talking about desired speech acts from members of Congress, or hearings, but my sense is that people are sometimes calling for Congress to act, as a body, to push back against Trump.  But Congress has no power to act – with legal consequences – by itself; the Chadha decision forbids this kind of action.[xiv]

So other than whatever power the press and the people can muster up,[xv] we are left with the courts.  But there are (at least) four hurdles here.  First, Trump forces others to find a lawyer and, unless one can find pro bono counsel, to pay the lawyer.  Second, the time Trump has forced on others is unrecoverable, and the attorney's fees are as well, since we live in a country with a strong presumption against attorney's fees shifting.  Even if one wins an easy case, the money spent on the lawyer is gone.  Third, litigation takes time, even in the best of cases, and even when Federal District Courts have ruled against Trump, circuit courts and the Supreme Court have sometimes stayed the District Court order, with a metric that, although (somewhat) clearly stated,[xvi] is hard to apply consistently.  Fourth, is Trump obeying court orders against him?  In some cases it seems he is not.[xvii]  Do courts have adequate powers to punish and deter presidential disobedience of their orders?  Do Trump and his agents fear jail time for contempt of court, or monetary fines?[xviii]  And consider that there is a proposal on the table in Congress to limit the power of courts to hold the executive in contempt.[xix]

We have come a long way from a framing generation that sought to provide a structure in which legislative and executive power would balance each other out, with courts as backstops.  Presidential lawmaking, as I have dubbed it, precedes Trump, but the aggressive use of often unauthorized power is something that Trump, shameless as ever, appears to proudly own.  Although Congress and the courts have authority to face down a presidential bully, these bodies must be willing to take what is sometimes courageous action, in the face of legal limits and practical hurdles.  We will see in the coming weeks and months whether the Constitution – with its "constant aim [of] divid[ing] and arrang[ing] the several offices in such a manner as that each may be a check on the other"[xx] – provides sufficient counterbalances against a President acting with disregard for constitutional structure.

[i] Below is a sampling of Federal District Court orders against Trump that have not been stayed or reversed on appeal.  See, e.g., Wilmer Cutler Pickering Hale and Dorr LLP v. Executive Office of the President (executive order targeted at law firm; D. D.C. May 27, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.278933/gov.uscourts.dcd.278933.110.0_4.pdf; D.V.D. v. U.S. Dep't of Homeland Sec. (deportation; D. Mass. May 23, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad.282404/gov.uscourts.mad.282404.132.0.pdf; Jenner & Block v. U.S. Dep't of Justice (executive order targeted at law firm; D. D.C. May 23, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.278932/gov.uscourts.dcd.278932.138.0_6.pdf; American Fed'n of Govt't Employees v. Trump (reduction in force at federal agencies; N.D. Cal. May 22, 2025), https://storage.courtlistener.com/recap/gov.uscourts.cand.448664/gov.uscourts.cand.448664.124.0.pdf; New York v. McMahon (dismantling of Department of Education; D. Mass. May 22, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad.281941/gov.uscourts.mad.281941.128.0.pdf; Doe v. Trump (deportation; N.D. Cal. May 22, 2025), https://storage.courtlistener.com/recap/gov.uscourts.cand.447674/gov.uscourts.cand.447674.50.0_1.pdf; Association of Am. Univs. v. Department of Energy (higher education cap on indirect funding costs; D. Mass. May 15, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad.283318/gov.uscourts.mad.283318.62.0.pdf; American Bar Ass'n v. U.S. Dep't of Justice (termination of grants to the ABA; D. D.C. May 14, 2025), https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2025cv1263-28; American Foreign Serv. Ass'n v. Trump (exclusion of federal workers from collective bargaining; D. D.C. May 14, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.279230/gov.uscourts.dcd.279230.37.0.pdf; Rhode Island v. Trump (reduction in force at federal agencies, and funds termination; D. Mass. May 6, 2025), https://storage.courtlistener.com/recap/gov.uscourts.rid.59257/gov.uscourts.rid.59257.57.0_2.pdf; Perkins Coie LLP v. U.S. Dep't of Justice (executive order targeted at law firm; D. D.C. May 2, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.278290/gov.uscourts.dcd.278290.185.0_1.pdf; Community Legal Servs. in East Palo Alto v. U.S. Dep't of Health & Human Servs. (withholding of appropriated federal funds; N.D. Cal. April 29, 2025), https://storage.courtlistener.com/recap/gov.uscourts.cand.447078/gov.uscourts.cand.447078.87.0_3.pdf; City and County of San Francisco v. Trump (withholding funds from sanctuary cities; N.D. Cal. April 24, 2025), https://storage.courtlistener.com/recap/gov.uscourts.cand.444175/gov.uscourts.cand.444175.111.0.pdf; National Educ. Ass'n v. U.S. Dep't of Education (DEI and federal funding; D. N.H. April 24, 2025), https://storage.courtlistener.com/recap/gov.uscourts.nhd.65138/gov.uscourts.nhd.65138.74.0_1.pdf; Orr v. Trump (transgender applicants for passports; D. Mass. April 18, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad.280559/gov.uscourts.mad.280559.74.0_1.pdf; American Fed'n of State, County, and Municipal Employees v. Social Security Admin. (privacy, information access; D. Md. April 17, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mdd.577321/gov.uscourts.mdd.577321.146.0.pdf; Climate United Fund v. Citibank N.A. (withholding of appropriated federal funds; D. D.C. April 16, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.278196/gov.uscourts.dcd.278196.89.0.pdf; Woonasquatucket River Watershed Council v. U.S. Dep't of Agriculture (withholding of appropriated federal funds; D. R.I. April 15, 2025), https://storage.courtlistener.com/recap/gov.uscourts.rid.59116/gov.uscourts.rid.59116.45.0.pdf; Chicago Women in Trades v. Trump (DEI certification, and funds termination; N.D. Ill. April 14, 2025), https://storage.courtlistener.com/recap/gov.uscourts.ilnd.473983/gov.uscourts.ilnd.473983.68.0_1.pdf; League of United Latin Am. Citizens v. Trump (federal elections rules; D. D.C. April 14, 2025), https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2025cv0946-104; Abrego Garcia v. Noem (deportation; D. Md. April 6, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mdd.578815/gov.uscourts.mdd.578815.31.0.pdf, substantially affirmed by Noem v. Abrego Garcia (U.S. S. Ct. April 10, 2025), https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf; Associated Press v. Budowich (curtailment of AP access; D. D.C. April 8, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.277682/gov.uscourts.dcd.277682.46.0_1.pdf; Doe v. Bondi (prison facilities, transgender persons; D. D.C. March 19, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.276959/gov.uscourts.dcd.276959.68.0_3.pdf; State of New York v. Trump (withholding of appropriated federal funds; D. R.I. March 6, 2025), https://storage.courtlistener.com/recap/gov.uscourts.rid.58912/gov.uscourts.rid.58912.161.0_2.pdf; Commonwealth of Massachusetts v. National Insts. of Health (cap on indirect funding costs; D. Mass. March 5, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad.280590/gov.uscourts.mad.280590.105.0_2.pdf; State of Washington v. Trump (funds, transgender medical care; W.D. Wash. February 28, 2025), https://storage.courtlistener.com/recap/gov.uscourts.wawd.344459/gov.uscourts.wawd.344459.233.0_4.pdf; National Council of Nonprofits v. Office of Mgmt. and Budget (withholding of appropriated federal funds; D. D.C. February 25, 2025), https://storage.courtlistener.com/recap/gov.uscourts.dcd.276842/gov.uscourts.dcd.276842.51.0.pdf; O. Doe v. Trump (birthright citizenship; D. Mass. February 13, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad.279895/gov.uscourts.mad.279895.144.0_1.pdf.

[ii] Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123 (1994).  https://chicagounbound.uchicago.edu/uclrev/vol61/iss1/3/

[iii] Id. at 125.

[iv] For some examples, see https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

[v] See New York v. McMahon (dismantling of Department of Education; D. Mass. May 22, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad.281941/gov.uscourts.mad.281941.128.0.pdf.

[vi] See Greene, supra note ii, at 176.

[vii] See, e.g., Collins v. Yellen, 594 U.S. 220 (2021); Seila Law LLC v. CFPB, 591 U.S. 197 (2020).  See also Trump v. Wilcox (May 22, 2025) (Supreme Court order staying lower court orders that would have protected heads of independent agencies from at-will presidential removal; suggesting that Court might be about to rule that all independent agencies are unconstitutional (or most, perhaps excepting the Federal Reserve)), https://www.supremecourt.gov/opinions/24pdf/24a966_1b8e.pdf.

[viii] Greene, supra note ii, at 187-95.

[ix] 462 U.S. 919 (1983).  Chadha itself involved a one House (rather than bicameral) "veto" that would result in deporting an individual.  As Justice Powell's concurrence in the judgment correctly saw, this looks like Congress giving itself (or part of itself) a kind of adjudicative power, which it surely lacks.  Chadha also applies to "legislative vetoes" of regulations.  This kind of veto doesn't have the problem of looking like adjudication; they look like legislation, but since done without presentment to the President, the Court also ruled them unconstitutional.  See Process Gas Consumer Grp. v. Consumer Energy Council of Am., 463 U.S. 1216 (1983) (summary affirmance).

[x] The ruling had a significant impact.  It "sounded the death knell for nearly 200 other statutory provisions in which Congress has reserved a 'legislative veto.'"  462 U.S. at 967 (White, J., dissenting).

[xi] U.S. Const. Art. I,  § 7 ("Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.  If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.").

[xii] Another angle on reducing presidential power and recovering congressional power is for Congress to delegate less open-ended power to the President, and/or legislate more precisely.  For many years, the Court has not enforced the so-called "nondelegation doctrine," which prevents Congress from writing laws in a way that appears to delegate legislative power to the President.  The Roberts Court might begin reenforcing the nondelegation doctrine.  See Gundy v. United States, 588 U.S. 128 (2019) (three dissenting Justices suggest such a course).  See also FCC v. Consumers Research (Nos. 24-354 and 24-422; nondelegation doctrine question pending at Supreme Court after briefing and oral argument).

The Court has arguably begun sneaking in some nondelegation doctrine invalidations of (or pruning of) statutes through its use of the "major questions doctrine."  See, e.g., Biden v. Nebraska, 600 U.S. 477 (2023); West Virginia v. EPA, 597 U.S. 697 (2022); Department of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1 (2020).  Here, the Court refuses to allow readings of statutes that would permit administrative resolution of major questions without clearer guidance from Congress in the governing statute.  Whether the major questions doctrine constitutes a stealth reinvigoration of the nondelegation doctrine is a disputed matter.  See, e.g., Biden, 600 U.S. at 507 (Barrett, J., concurring); West Virginia, 597 U.S. at 735 et seq (Gorsuch, J., concurring); Gundy, 588 U.S. at 149 (Gorsuch, J., dissenting).  It will be interesting to see if the Court applies the major questions doctrine to some of Trump's broad assertions of power under less than clear statutory authorization.  For a lower court that has just done so, see V.O.S. Selections, Inc. v. The United States of America (invalidating tariffs; U.S. Ct. Int'l Trade, May 28, 2025), https://storage.courtlistener.com/recap/gov.uscourts.cit.17080/gov.uscourts.cit.17080.55.0.pdf.

[xiii] Similarly, the Senate can threaten to refuse to confirm presidential nominations or ratify treaties.

[xiv] Musings about Congress' power to act – either via the kind of legislative veto that Chadha rejects, or through standard Article I, section 7 bicameralism and presentment – may seem fanciful at a moment when Congress appears supine before a presidential bully.  Nonetheless, it's worth pondering the powers available to and the limits that would confront an effective and willing Congress.

[xv] I don't mean to downplay such powers here.  They may be key to stopping Trump's excesses.  They're just not the focus of this essay.

[xvi] See, e.g., Merrill v. Milligan, 142 S. Ct. 879, 880 (2022) (per curiam grant of stay) (Kavanaugh, J., concurring) (applicant to Supreme Court for stay of lower court judgment "ordinarily must show (i) a reasonable probability that this Court would eventually grant review and a fair prospect that the Court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay…. In deciding whether to grant a stay pending appeal or certiorari, the Court also considers the equities (including the likely harm to both parties) and the public interest."); see also id. at 883 n.1 (Kagan, J., dissenting) ("A stay pending appeal is an "extraordinary" remedy"; "The applicant … bears the "especially heavy" burden of proving that such relief is warranted"; "Our stay standard asks (1) whether the applicant is likely to succeed on the merits, and (2) whether the likelihood of irreparable harm to the applicant, the balance of equities, and the public interest weigh in favor of granting a stay.").

[xvii] See, e.g., D.V.D. v. Department of Homeland Sec. (deportation; D. Mass. May 21, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mad.282404/gov.uscourts.mad.282404.118.0_1.pdf; Abrego Garcia v. Noem (deportation; D. Md. April 11, 2025), https://storage.courtlistener.com/recap/gov.uscourts.mdd.578815/gov.uscourts.mdd.578815.61.0_3.pdf; State of New York v. Trump (frozen federal funds; D. R.I. February 10, 2025), https://storage.courtlistener.com/recap/gov.uscourts.rid.58912/gov.uscourts.rid.58912.96.0_2.pdf.

[xviii] Trump himself might not.  See Trump v. United States, 603 U.S. 593 (2024) (granting President absolute immunity for some official acts and at least qualified ("presumptive") immunity for other official acts).

[xix] 119th Congress, "H.R. 1 § 70302. RESTRICTION ON ENFORCEMENT.  No court of the United States may enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section."

One might offer a fifth and sixth hurdle:  Courts do not have the power to enforce contempt sanctions themselves; they must rely on executive branch actors.  Thus, the President might thwart effective enforcement of contempt sanctions, and also (arguably) might pardon those held in contempt of a federal court order.  For some questions about this, see https://verdict.justia.com/2017/08/31/presidential-pardon-power-may-not-absolute.

[xx] Federalist 51 (Madison), https://constitutioncenter.org/the-constitution/historic-document-library/detail/james-madison-federalist-no-51-1788.