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The Trump administration’s first month included a slew of actions and statements that have postulated new legal theories and challenged existing norms. Through a flurry of executive orders, the White House seems to be assuming powers that have historically been vested in Congress, including around spending and the control of federal agencies. Many of these are currently being challenged in court. The administration appears to be guided by a legal doctrine, known as unitary executive theory, that contends the president’s authority has few legal limits. President Donald Trump recently gave an insight into the philosophy when he quoted Napoleon on social media, writing, “He who save the country does not violate any law.” (Vice President JD Vance also recently mused on X that, “Judges aren’t allowed to control the executive’s legitimate power.”) Below, several faculty members at Harvard Kennedy School analyze the administration’s actions, the role of courts and Congress, and whether we are approaching a constitutional crisis. 

• Alex Keyssar: Upending institutional arrangements
• Maya Sen: Congress should be making these decisions
• Sarah Wald: We all have a role to play 

On the Law and the Constitution in the Early Weeks of Trump 2.0 

Alex Keyssar 

It is, of course, too early to offer definitive verdicts, but the first few weeks of the Trump administration may well constitute the most severe attack on the rule of law in the United States since confederate armed forces began lobbing artillery shells into Fort Sumter in 1861. Aided by a supine Congress dominated by his own political party, a determined president—with a long track record of disrespect for the law and the judicial system—is attempting to enhance his own power by upending institutional arrangements outlined in our Constitution and gradually constructed over the course of many decades. 

One of the most notable features of the early Trump administration is the sheer number of executive orders issued that are of questionable legality. Ending birthright citizenship; impounding funds appropriated by Congress; dismantling agencies created by Congress; firing inspectors general and agency heads—the list could (and does) go on. Why this strategy (“flooding the zone,” as defined by former Trump advisor Steve Bannon) rather than one or two carefully targeted policies and probes? It’s hard to avoid the conclusion that the Trump administration is seeking to overwhelm and intimidate the judiciary, whose task it is to determine the legality and constitutionality of governmental actions.   

The strategy seems designed to prod the judiciary (ultimately the Supreme Court) into demonstrating its political neutrality by sanctioning some—but not all—of Trump’s measures. The Supreme Courts could, for example, oppose the Trump administration on birthright citizenship (which Trump may not really care much about) while upholding the executive branch’s right to not disburse money that Congress has appropriated (which could eviscerate programs and agencies, while permanently diminishing the power of Congress). By taking such actions, the conservative majority of the Supreme Court could deflect the charge of being a Republican rubber stamp while also avoiding a full-fledged confrontation with the executive branch—in which the president refused to respect the decisions of the court. The latter, of course, would constitute the most obvious form of constitutional crisis that could arise from this array of executive actions.  

Indeed, if we are not yet in a constitutional crisis (one in which there are no constitutional rules to guide the resolution to a conflict), we’re close enough to feel its approaching headwinds—even if it will take time for many of these issues to be settled by the Supreme Court. What else could be meant by Vice President JD Vance’s chilling warning that judges “aren’t allowed to control the executive’s legitimate power”? Or Elon Musk’s assertion that a Bush-appointed judge who issued an adverse opinion was “evil” and ought to be fired; or Trump’s vaguer statement (uttered with Musk standing nearby) that “maybe we have to look at the judges?” It seems increasingly clear that the judiciary faces a choice between capitulating to Trump (at least on some issues) or risking a constitutional crisis. 

One other strategy that President Trump has deployed also deserves mention, in part because it has thus far received less attention than dramatic actions like the wholesale attack on USAID or the mass firings of federal employees. This has been the effort to neuter or shift the administration of law at regulatory agencies created by Congress. These agencies were (and are) structured to be run by multimember boards whose members are appointed to terms that are not co-extensive with presidential terms. They are designed, thus, to have some independence from presidential administrations and, in certain cases to be bipartisan. But Trump (with the support of several conservative legal theorists and judges) is seeking to dismantle those internal checks and balances by asserting his unfettered right to fire members of agency boards without “cause.” He has already dismissed (probably illegally) the chairs of the National Labor Relations Board (denying the NLRB a quorum needed to make decisions) and the Federal Elections Commission, among others—and more will surely follow. Such actions are being contested in the courts, with the Trump administration seeking to dismantle an institutional architecture that was created expressly to limit presidential power.

As a historian, I’m often asked whether such challenges to democracy, the Constitution, and the rule of law are unprecedented in U.S. history. My usual answer is “yes”—but three revealing historical episodes come to mind. The first, of course, was the conflict over slavery and states’ rights, a long-brewing constitutional crisis that led to the secession of southern states and the Civil War. The second was in the 1930s when a conservative Supreme Court declared the major legislation of the New Deal to be unconstitutional, preventing President Roosevelt and Congress from implementing policies needed to respond to the Great Depression. Roosevelt then unveiled his “court-packing” scheme, which would have permitted him to appoint additional justices to the Supreme Court and, in so doing, weaken the institution. A crisis was averted in that instance by one key justice altering his views (“the switch in time that saved nine”) and the subsequent retirement of several of the conservatives.

The third episode suggests the perils of Congress ignoring the Constitution. After Reconstruction had ended and northern troops were withdrawn from the South, white supremacists in the region regained power, depriving African Americans of their civil and political rights—which had been guaranteed, after the Civil War, by the Fourteenth and Fifteenth Amendments to the Constitution. Outrage at these developments prompted Congress in 1890 to consider a Federal Elections Bill, which would have deployed federal power to protect the rights of African Americans in the South. But Congress narrowly failed to pass that legislation, thereby leaving key provisions of the Constitution unenforced. No overt constitutional crisis occurred in Washington, but the Constitution was a dead letter in the South for the next 75 years, as was the rule of law for Black people. In 1965, when the Voting Rights Act of 1965 was passed, its subtitle was “an act to enforce the Fifteenth Amendment to the Constitution of the United States.”  

Alex Keyssar is the Matthew W. Stirling, Jr. Professor of History and Social Policy. 

Congress needs to find its voice again

Maya Sen

There has been so much chaos in the first few weeks of the Trump administration that it’s very disorienting.

I think we need to separate out the issues involved and find common ground where we can. For example, as Americans, we can disagree fundamentally about how much to commit to something like foreign aid. Some people think we should be doing much more, and some think we should be doing much less. We can disagree about that. But what we can all hopefully agree on is that our nationally elected legislature—Congress—should be the one making those decisions, not Elon Musk.

That is what worries me about the current trends in this administration. 

I view U.S. Agency for International Development as the canary in the coal mine. It was created by an executive order but was then established by Congress as an agency. As much as they might want to, neither President Trump nor Musk has the authority to unilaterally close it down. That power belongs to Congress. 

Trump’s suspension of the TikTok ban is also worrisome. Congress passed an act banning TikTok due to national security concerns. The ban was then signed into law by then-President Joe Biden and upheld by the U.S. Supreme Court. Even so, the Trump administration has unilaterally suspended the enforcement of the law, possibly indefinitely. TikTok is now back at the Apple store, as if nothing happened. 

These actions usurp Congress’s constitutional power, and this has very troubling implications for American governance. Congress is our national legislative assembly. For constitutional governance to work, we need Congress to be a functioning, coequal branch of government. Actions like this not only effectively sideline it, but they also pave the way for other unlawful, possibly unconstitutional actions—including threats against other agencies, the firing of federal workers, and the withholding of Congressionally appropriated federal funds. 

I think that federal courts can be helpful in addressing many of these problems, but even if the courts intervene, it will take months before the issue is resolved. By that point, important agencies like USAID may be effectively dismantled, and putting them back together will be very challenging, if not impossible. Courts are very good at striking things down, but they are much less effective at putting broken things back together. As well, the Trump administration has made several threats—including from JD Vance and Musk—that it may refuse to comply with court rulings. 

For that reason, I think Congress has the responsibility to re-assert its power. Here, I think that the public can play a strong role. Congress members are responsive to their constituents, and so people can make their voices heard. If both Republicans and Democrats let Congress know that the executive branch is taking on too much power, that would be a good place to start. Congress needs to find its voice again, and people can help empower it to do so.

Maya Sen is a professor of public policy.

Who protects the rule of law?

Sarah E. Wald

Are we in a constitutional crisis? The current debate among outraged or fearful observers about the apparent disregard for the rule of law by the new administration in Washington will undoubtedly continue. President Trump and Elon Musk have asserted powers under the novel and untested theory of a president’s “unitary” power over spending, independent agencies, and civil rights doctrine that run contrary to our history, to precedent, and to what most lawyers learned in law school. They have asserted as constitutional fact an interpretation of the 14th amendment birthright citizenship provisions that a federal judge has noted is “blatantly unconstitutional.” The overarching rationale seems to be that if the administration does something, that alone makes it legal.

The rule of law in the United States, based on a system of checks and balances and clear processes for deciding contested principles, stems from the notion that the legal system and processes should be stable and that no one person can decide on their own what the Constitution means or that a law adopted by Congress should be ignored. This is a fundamental principle of American democracy that has been an aspirational model for our own citizens and for other countries. But as recent events have shown, it is not self-executing. This is a principle that needs government actors, civil society, and individual citizens to stand up.

I have been impressed by those who are doing so now, even at some risk to themselves in this hyper-partisan world. The state attorneys general of many blue states identified threats to their own states and their citizens in advance, and to file legal challenges to many recent Trump/Musk actions, including freezes on federal funding; birthright citizenship changes; and firing of some agency personnel. The federal judges who have carefully reviewed these challenges and quickly put in place injunctions to stop them when they were questionable are also admirable. These have And individual government officials, including acting , and U.S. Treasury official David Lebryk [MPA 1988], have stood up for the principle of rule of law in professional and public ways, choosing to resign rather than carry out what they believe to be illegal and dangerous actions.

These are complicated and nuanced disputes. It is unclear how they will be finally resolved, and it is likely to take substantial time and multifaceted efforts. Our system of judicial review is slow and clunky at times. And preliminary injunctions are just that—temporary and lasting only until full reviews occur. Some have concluded that it is therefore a mistake to rely on lawsuits and judges to “rescue” the rule of law in this moment. And it is true that no one branch of government or organization can be the sole entity we rely on. Congress’ silence in this moment is puzzling and distressing. But rather than making me despair about the ability to uphold the rule of law, I take inspiration from the initial burst of energy and commitment from state attorneys general, from the judges, and from the individuals who all have said, by their actions, “no one is above the law.” Regardless of our policy or political leanings, we can conclude that all of us have a role in protecting that fundamental principle of our democracy.

Sarah Wald is an adjunct lecturer in public policy.

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Banner image: February 2025: Snow covers the U.S. Capitol grounds after a winter storm. Photo Credit Bill Clark/CQ Roll Call via AP Images.