William Baude (University of Chicago Law School) has posted Abuse of Power in the Second Trump Administration (23 U. St. Thomas L. J. (forthcoming 2026)) (12 pages) on SSRN. Here is the abstract:
The law firm orders are not the most unconstitutional thing the Trump administration has done to date. But they are emblematic of a constitutional problem frequently raised by the Second Trump Administration: the use – and abuse – of a broad range of powers to reward the friends and punish the enemies of the regime. While courts may not be able to stop many of these abuses, that does not mean they are constitutional.
And from the paper, an interesting “methodological aside” (footnotes omitted):
If you will forgive an extended methodological aside: These issues can sometimes become needlessly complicated because some
originalists have focused too exclusively on the original meaning of the text of the Constitution rather than considering the original law of the Founding.
I tried to gently correct this just now by speaking of the original understanding of freedom of speech and freedom of the press rather than the original meaning of the First Amendment. The First Amendment refers only to “Congress,” a fact that has led many non-originalists to argue that originalism cannot explain why First Amendment doctrine applies to the President and the federal courts; and has led some textualist originalists into various clever gymnastics to explain how it can.
But if we focus, as we should, on original law, and not only the text, the whole thing is simpler. At the Founding, many important legal rights were recognized in unwritten, general law. These included the positive law right of freedom of the press and the natural rights of freedom of speech, thought, and conscience. These rights were law, so they applied to the President and federal courts who had to follow the law and had no law-making power. Only Congress had lawmaking power that might be used to regulate or abridge these rights, so it’s unsurprising that the written Constitution then emphasized that Congress could not abridge these rights, though it could regulate them.
My textualist/originalist view on this is somewhat different (not sure if this counts as “clever gymnastics”):
In passing a statute, Congress implicitly authorizes the President to use all constitutional means to enforce it. But Congress cannot authorize the President to abridge the freedom of speech in enforcing a statute, because that would itself be a law abridging the freedom of speech. Therefore, all statutes have an implicit limitation that they cannot be enforced by the President in ways that abridge the freedom of speech. True, this limitation only applies to presidential actions to enforce statutes, and not to exercises of independent presidential powers. But the President has no independent lawmaking authority (all lawmaking authority being vested in Congress by Article I, Section 1), so the President’s ability to use independent powers to abridge the freedom of speech is constrained. (This is why the First Amendment only addresses Congress). And where the President has independent powers, I think the First Amendment is not a limitation. The President can refuse to pardon someone because of their speech; the President can refuse to appoint someone because of their speech; and the President can remove someone from an executive office because of their speech.
(Via Larry Solum at Legal Theory Blog, who says “Highly recommended! Download it while it’s hot!”)
Posted at 6:09 AM