From DOGE to USAID: Are Trump’s Executive Actions Legal?

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: And it is now a familiar sight, President Trump at his desk, wielding his pen, issuing executive orders. But what exactly are the legal implications of this signing spree? Gillian Metzger is a constitutional law professor at Columbia Law School, and has previously served as deputy assistant attorney general. And she joins Walter Isaacson now to decipher the actions that we’ve seen so far and what comes next.

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WALTER ISAACSON, CO-HOST, AMANPOUR AND CO.: Thank you, Christiane. And Professor Jillian Metzger, welcome to the show.

JILLIAN METZGER, PROFESSOR OF CONSTITUTIONAL LAW, COLUMBIA LAW SCHOOL: Thanks for having me.

ISAACSON: President Trump has embarked on sort of a wide-ranging assault on the bureaucracy, shutting down agencies, cutting spending. It was pretty much what he was elected to do and Congress has offered no real pushback. So, what’s wrong with what he’s doing?

METZGER: Well, there’s several things that are concerning about what he’s doing. I mean, I think what we’re seeing is really a remarkable assertion of executive power. Our system is not one where the president is supposed to be governing single handedly. The — many of the actions that the president has taken certainly appear to be in acting in the face of governing statutes, some instances at odds with the Constitution. So, I think his actions so far do raise some pretty serious rule of law concerns.

ISAACSON: Well, wait, let’s go to the — in defiance of the Constitution. Give me a couple of examples.

METZGER: Well, for example, his executive order on birthright citizenship. It’s very hard to square it, to put it mildly, with the 14th Amendment. And has been enjoined already on that basis. Some of the claims that we may see in some of the actions on funding may reflect a very capacious view of the president having an inherent power to not spend, which is not a power that has been recognizing. In fact, the Constitution very strongly gives the power of the purse to Congress. So, that would be another area where concern about his actions not working with the constitutional framework as a reason.

ISAACSON: You know, let’s drill down on that power not to spend, whether it be sequestering, impoundment, or just not spending money that’s been appropriated by Congress. That seems a somewhat murky, although, there have been cases about it, area. To what extent can the executive branches say, OK, this is wasteful money, we’re not going to spend it?

METZGER: You really have to look at the — there is actually a very reticulated legal framework that governs spending. There is, in the Constitution, the grant of the spending power to Congress and also the Appropriations Clause that says that the executive branch cannot make spending without an appropriation from Congress. The two things that really reiterate why Congress is the main constitutional actor.

ISAACSON: But that says they can’t make spending without appropriation, but can they just not spend some money that’s been appropriated if they think it’s wasteful?

METZGER: Right. So, when you’re talking about not spending, you’re still actually acting in violation of a statute because the statute — the appropriations statute grants the funds and if it’s a statute that doesn’t grant discretion about how they are expended, or if the executive branch is acting in a way that’s at odds with the terms of that statute, you still have a violation of Congress’ control over our funding. There’s also a background statute, which dates back to 1974, and was enacted in response to the last president who ever raised this kind of broad attack on spending, which was President Richard Nixon. And it’s the Empowerment Control Act of 1974, and it very significantly restricts the occasions on which the executive branch can refuse to spend money that has been appropriated by Congress.

ISAACSON: So, let’s say he doesn’t spend money, or the bureaucracy doesn’t, or the agency doesn’t spend money, what’s the legal recourse? Does Congress have to sue to stop it? Can an ordinary citizen sue to stop that?

METZGER: Well, we’ve had a couple of lawsuits already by one by a group of states and one by a group of nonprofits, both of which were affected by the funding freeze in terms of having funds that they were expecting or relying on taken away. And so, that gives them, in that sense, standing. And the claims that they have raised are attacks on the action as being arbitrary and capricious because these were lawsuits aimed particularly at the OMB memo in part, and the lack of explanation in that very brief memo for this categorical across the board pause in fundings, what they’re targeting as arbitrary and capricious, and also because of the lack of statutory authority on the part of the executive branch to just pause funding, which again, Congress has required. I mean, there might be some — no doubt there are some statutes that are affected by the spending pause that, in fact, do give some discretion to the executive branch. But again, the pause was enacted in such a categorical, across the board way that it really — you can’t tie it to those specific statutes. It’s a real deviation from the way appropriations and spending has been treated in the past.

ISAACSON: Does it matter if Congress, let’s say, it just rolls over as it seems to be doing at the moment?

METZGER: I think it does matter. You know, you can do lawsuits. And lawsuits, in this case, there were very quick temporary injunctions put in place. But, you know, fundamentally, it’s going to have to be Congress that’s going to be defending its core constitutional prerogatives. And so far, we really haven’t seen that. And we’re going to need to see it in order to really enforce the constitutional framework.

ISAACSON: Well, let’s go over some of the specific things. There’s USAID, the Agency for National Development, Foreign Aid. And he wants to either decimate it or shut it down or roll it into the State Department. Is that legal?

METZGER: I don’t believe it is from what I’ve seen so far. There is a — the most basic problem is that USAID is an agency that was created by Congress. Congress has the authority to create agencies, not the executive branch. If Congress creates an agency, then it’s going to take action by Congress to decreate an agency. The appropriation statutes for fiscal year 2024 do allow the executive branch to do some reorganization, but only if the executive branch consults with Congress first and actually prohibits the use of any funds that go to the State Department or USAID for a reorganization where there hasn’t been that kind of consultation with Congress. So, this actually seems to be really flying in the face of that statutory framework.

ISAACSON: Now, let’s take another one, which is the Consumer Financial Protection Bureau. That also seems to have been rolled into the Treasury Department. The new treasury secretary is now in charge, and he’s basically, I won’t say shutting it down, but dismantling it a lot. Is what’s — wrong with that, since that was also something Trump ran on saying he was going to do?

METZGER: I mean, just because he runs on it doesn’t mean that he gets to do it if it’s at odds with governing statutes, right? That’s kind of the fundamental principle that’s underlying a lot of these lawsuits is, you know, trying to ensure that the executive branch actions go forward in accordance with governing statutes. For the CFPB, you’d want to look at the statute creating the agency and assess whether or not this was a power that Treasury had. The CFPB was initially created as an independent agency with very strong independence protections, many of which it still has in terms of, for example, having a budget that’s independent and independently funded. So, the question would be in all of these cases, whether or not the action that the executive branch is asserting is really compatible with the governing statutes? And that’s what courts are looking at.

ISAACSON: All of this seems part of a larger dispute, one that we know the Supreme Court’s going to have to resolve on whether the executive is sort of unitary and that the president can do whatever he wants with the executive branch. Explain that theory and the sense you have of the Supreme Court, which seems to be somewhat more supportive of that theory than previous courts.

METZGER: Yes, it certainly is. So, the unitary executive theory emphasizes that the executive power under the Constitution is vested in a president, a single president, and emphasizes that he, under this theory, gets to exercise all of the executive power, which is then understood to mean not simply supervise the exercise of executive authority by all of the different employees and departments and agencies that Congress creates in the executive branch using Congress’ own constitutional power, but instead, it seemed to me the president sort of has the authority to make the decisions. And in particular, to remove, you know, officials exercising executive power, particularly so far, the court has emphasized that at the high level, right? So, we’re talking in particular, for example, the CFPB director, a principal officer in the executive branch who has a five-year term. So, the, this Supreme Court has taken a broad view of presidential authority and asserted this unitary executive view, particularly in the context of challenges to removal restrictions. So far, the court has not overturned a leading precedent going back to 1935 that does allow removal protections for a multi member independent age headed agency, for example, or for inferior officers who don’t have a significant policymaking authority.

ISAACSON: Well, the way you get specific on that, like, is that the National Labor Relations Board and Trump fired a Democrat on it? Is that what you’re talking about?

METZGER: Right. Well, so the National Labor Relations Board commissioner would be a principal officer. And the question, if that goes forward, and I believe a lawsuit has been filed, the question that will be raised is that removal was not in keeping with the governing statute and removal protections and whether or not those protections intrude on the president’s ability to take care of the executive branch and on his ability to remove high ranking executive branch officials. In its recent decisions, again, the court has retained this earlier precedent that allowed removal protections for a multi member boards that had served divided partisan grounds, as the NLRB is. Whether or not it will conclude that the NLRB exercises too much executive authority or that the protections against removal in that statute are too great or decide to overturn that earlier precedent is one of the things the litigation will show.

ISAACSON: This is part of the larger movement that started with the overturning of what’s known as the Chevron deference, which means that you kind of defer to agencies — unelected agencies, to make rules and regulations to do what Congress does. Tell me how that fits into what I guess the Trump people would call overreach by the federal bureaucracy and their desire to trim that ability back.

METZGER: What Chevron basically said was that if an agency is charged with implementing a statute, then a court should defer to the agency’s interpretation of ambiguous statute if that interpretation is reasonable. And in that sense, yes, it — you know, it gave agencies deference for their interpretations of statutes on the grounds that Congress had implicitly delegated authority to them, right, having them be the implementer of the statute. Interestingly, we have a president administration right now that are making very bold assertions of executive power. And in fact, what we see with the Roberts court is that they’ve been a little bit skeptical about some of these broad assertions of executive power. And in particular, you know, if the Trump administration is asserting particular views of governing statutes, under the overturning of Chevron, they will no longer get deference for those views. So, whether or not the Roberts court approach to agency authority and its assertion of judicial power to review agency interpretations ends up fitting with the agenda of the Trump administration, which wants to assert executive power in its own right is something we still have to see.

ISAACSON: So, to simplify that a bit, what you’re saying is that the decision which conservatives cheered of not allowing the agencies too much deference when they make regulations could come back and hurt what Trump is trying to do, which has let some of these appointees of his in these agencies scale things back radically.

METZGER: Yes. I mean, because, at the end of the day, it is going to be courts determining whether or not agencies have authority to do the actions they want to do without giving them deference. And it is — Chevron was always a doctrine that served the interests of the administration and power in terms of giving it deference. So, we will see whether or not it comes back to bite a little bit Trump administration.

ISAACSON: I want to talk about DOGE, the so-called Department of Government Efficiency, which was established by Transforming the U.S. Digital Service, run by Elon Musk. It’s been given a lot of access, including to the Treasury payment systems, maybe read only access, the secretary of treasury says. Is there something illegal or wrong with that, in your opinion?

METZGER: Well, I think there are some real concerns that have been raised. There’s some real Privacy Act concerns. There’s some real concerns about sort of just lack of accountability. These are systems that are very closely held, and access to them is stringently limited. And so, it’s concerning to think that they are being made open more generally. There, there has been litigation, a lawsuit again filed, and this is, I think, the theme of my remarks, but raising the Privacy Act challenge to some of what — some of the access that has been granted.

ISAACSON: Elon Musk has been called a special government employee. What does that mean, and is he subject to the conflict-of-interest rules in government?

METZGER: So, special government employees are a category of employee that are statutorily authorized. The critical feature is that they are officers or employees whose tenure is expected to be temporary and limited to 130 days out of any 365-day period. They are subject to the many of the conflict-of-interest requirements and the financial disclosure requirements. They are — they have some exemptions from some requirements and they may not need to file publicly on the financial disclosure front, depending on how many days they are employed, but they are subject to those restrictions.

ISAACSON: And who’s supposed to enforce those restrictions?

METZGER: Well, those are restrictions that are generally enforced, for example, by the Office of Government Ethics and by others in the administration.

ISAACSON: And can the Trump administration and President Trump himself decide how those will be enforced?

METZGER: Well, I mean, again, a kind of core responsibility of the president is to take care that the law be faithfully executed. And that is an obligation that the president and leaders of the executive branch historically have taken quite seriously. So, if a statute requires disclosure, then I would assume that an administration would take that seriously.

ISAACSON: Over the past 20 or 30 years, presidents have been using executive authorities and orders and just expanding presidential power. Congress has been deferring, the courts have been deferring. Has the president had this much authority ever before in our history? And is this a trend that Trump is just accelerating?

METZGER: Well, certainly you’re absolutely right. We are — we’ve been on a path of expanding executive authority in part given some of the political divides in the country and as a result of difficulty that Congress has had in terms of taking on major issues and enacting legislation. I think that the — what we’re seeing with the Trump administration is, in some ways, a following on and expansion that trend. And you know, the degree to which the current administration appears to be willing to act in the face of governing statutes, in the face of the Constitution is, I think, a distinctive trait and one that is particularly alarming and worth highlighting. But the overall expansion of presidential authority has been going on for a while.

ISAACSON: Professor Gillian Metzger, thank you so much for joining us.

METZGER: Thanks for having me.