Since returning to office, President Donald Trump has made almost daily sweeping, though dubious, claims of power that threaten fundamental principles of the U.S., like the right to due process, the separation of powers and free and fair elections.
Just 100 days into his second term, legal experts warn that Trump’s campaign for expanded authority has exposed fundamental weaknesses in the country’s constitutional order.
“One of the striking things about the second Trump administration is that even compared to the first there’s virtually no emphasis on legislation whatsoever,” Samuel Issacharoff, a constitutional law professor at New York University School of Law, said to Democracy Docket.
Trump sought to rapidly alter the country largely by decree. He’s signed on average almost one-and-a-half executive orders or memorandums each day since his inauguration, using them in his efforts to rewrite the plain language of the Constitution, to assault civil society and target free and fair elections.
“This is the most dramatic use of executive orders, both in terms of quantity and in terms of the reach of them, that we’ve had in a very long time,” Issacharoff added.
Assault on the separation of powers and rule of law
Corey Brettschneider, a political science professor at Brown University, described Trump’s first 100 days as “an all-out assault on democracy.”
Brettschneider told Democracy Docket he’s been using the term “‘self-coup” to describe the opening acts of the second Trump administration.
“We have an idea of coups being external military assaults on the government, but self-coups take place within the government, from within the executive branch in particular,” Brettschneider said.
Usurping power from other branches and undercutting the rule of law are key objectives of a self-coup, Brettschneider added, noting that Trump has been pursuing both of those goals.
The president has attempted to seize Congress’s constitutional powers by impounding federal funds and overriding its ability to define and shape the government by unilaterally dissolving agencies and firing key independent officials.
Congressional Republicans have largely approved of Trump’s actions and most are actively ceding core legislative duties to him, leaving the courts as the only remaining constitutional branch to check him.
However, the administration is trying to invalidate the judiciary as well by repeatedly questioning the courts’ constitutional authority to review the actions of the government, brushing off or deliberately misconstruing court orders and attacking both conservative and liberal judges who rule against the government.
The president’s attacks on the courts are part of his efforts to weaken the rule of law and warp the legal institutions into political tools to reward sympathizers and punish his rivals.
Casting aside long-established norms, Trump is using the Department of Justice as his personal law firm, directing Attorney General Pam Bondi to open investigations into his perceived enemies. Through pardons, the president is also protecting and rewarding allies and idealogues who break the law in his name.
Trump, too, has gone after Democratic-leaning law firms that have hired or represented people or causes he opposes. In going after firms, the president threatens the country’s adversarial system of justice in which the accused or the wronged can find strong representation.
Centralizing power over the executive branch
As part of his effort to undercut the rule of law, Trump has been working to purge any form of independence from the executive branch.
Operating under the dubious “unitary executive theory,” Trump is seeking unrestrained power to remove and replace federal offices to impose his will on every decision in every agency, even those Congress specifically created to operate without direct control from the White House.
In firing several independent officials without cause, Trump has deliberately violated federal laws to get lawsuits challenging the dismissals before the Supreme Court in hopes that conservative justices will overturn precedent and find statues that limit the president’s removal powers unconstitutional.
“Essentially, what Trump is saying is I want to abolish all of that. There can be no independent judgement by anyone in the executive branch. My will alone is the only thing that counts,” Frank Bowman, a constitutional and criminal law professor at the University of Missouri School of Law, told Democracy Docket earlier this year.
Trump is also trying to significantly alter the executive branch by shutting down certain federal agencies but expanding and rerouting resources to others, particularly law enforcement agencies.
For example, Trump has undertaken a major expansion to Immigration and Customs Enforcement and taken steps to increase the military’s involvement in law enforcement.
“What he wants is to consolidate power under his thumb, and law enforcement in particular gives him that,” Brettschneider said. “ICE is not an independent agency and it’s something he can control and build up into a nationwide deportation force or police force. That’s frightening.”
“And of course the other thing he can do, and I suspect might do, is use the Insurrection Act to use the military domestically,” Brettschneider said.
Undermining voting rights and suppressing dissent
Tara Malloy, a senior director at the elections watchdog group Campaign Legal Center, told Democracy Docket earlier this year that Trump’s attempt to expand presidential powers is especially alarming given his efforts to increase his control over elections.
“There’s a way in which it’s not just an aggrandizement of presidential power but a way to perpetuate presidential power,” Malloy said.
As part of his crackdown on independent agencies, Trump has attempted to exert control over the federal commissions that investigate and enforce campaign finance laws and help improve how elections are administered.
Many provisions of Trump’s anti-voting executive order are now on hold. However, if they are ultimately upheld, he would gain unprecedented power to tilt elections in the GOP’s favor.
The president made U.S. elections more vulnerable to both foreign and domestic interference as well by firing federal election security officials and cutting funding for programs that alert state and local election officials to cybersecurity threats.
Trump also stacked the Department of Justice (DOJ) with officials who perpetuated his voter fraud in the 2020 presidential election and who may have worked to overturn state election results on behalf of his campaign.
In essence, Trump has institutionalized his “big lie” that the 2020 election was stolen from him, and in future elections, these officials may be more likely to pursue aggressive investigations and prosecutions based on the president’s false claims of massive voter fraud and rigged elections.
Malloy said that many of these acts can be seen as a broad “attempt to entrench — whether it’s this president, his party or his ideological supporters — in a way that is less easy to reform or change in the future.”
Trump and his allies know that expansions to executive powers will be available to the president no matter who’s in office and that the executive actions of one president can be undone by the next.
“I did it last time. And they undid it,” Trump said in the oval office recently. “That’s why we have to stay president for a long time.”