Trump’s executive action strategy: Go ahead, sue me. (WaPo)

DONALD JOHN TRUMP learned his contempt for the Rule of Law from ROY MARCUS COHN, a lawyer for the late U.S. Senator Joseph R. McCarthy, the noted demagogue censured by the Senate.  From The Washington Post:

Trump’s executive action strategy: Go ahead, sue me

Even proponents of unilateral moves such as restricting birthright citizenship and rejecting federal spending measures expect them to face litigation. That’s part of the plan.

December 14, 2024 at 12:00 p.m. ESTYesterday at 12:00 p.m. EST

11 min

President-elect Donald Trump speaks as he arrives for a meeting with the House GOP conference, Wednesday, Nov. 13, 2024, in Washington. (Alex Brandon/AP)

By Isaac Arnsdorf

 and 

Jeff Stein

Officials in the incoming Trump administration have an answer for anyone questioning the validity of several policies they plan to implement immediately and unilaterally: Go ahead and sue.

President-elect Donald Trump has long promised to take executive action to withhold birthright citizenship from people born in the United States to parents who are undocumented immigrants, but his advisers now see a court fight as a goal of that effort, rather than an obstacle.

Similarly, incoming budget officials have said they want to openly defy a 1974 law by refusing to spend money that Congress has authorized, forcing a lawsuit to test the Watergate-era statute’s constitutionality. And aides involved in the transition said they’ll plow ahead with reviving a policy from late in Trump’s first term making it easier to fire tens of thousands of civil servants despite a Biden administration policy meant to bolster their protections, leaving individual federal workers to fight their own appeals.

Trump could take the actions on birthright citizenship, tariffs and the federal workforce as soon as Inauguration Day or in the first month of the new administration, according to two people familiar with the preparations who spoke on the condition of anonymity because they were not authorized to discuss the plans.

Many major presidential policy initiatives end up in court, and every administration prepares for legal battles. But the Trump team wants to move to that phase more quickly. The incoming administration’s eagerness to litigate reflects a regret by alumni of Trump’s first term that they spent too long vetting policies with lawyers only to end up in court anyway. This time, incoming officials are more inclined to move quickly and let the lawsuits do the vetting.

“President Trump will find every way possible to deliver on the promises he made to the American people in accordance with the law,” spokeswoman Karoline Leavitt said. “Those who seek to delay or stall his agenda by filing litigation against the Trump administration will be subverting the will of the tens of millions of Americans who just reelected President Trump.”

The strategy recalls Trump’s first-term approach to his ban on travel from Muslim-majority countries, which went through three iterations before eventually being upheld by the U.S. Supreme Court. But banking on executive action hasn’t always worked out for Trump or other presidents. Trump’s push to add a citizenship question to the U.S. Census and President Joe Biden’s most aggressive attempts to cancel student debt both failed at the Supreme Court.

The incoming administration is betting that Democratic lawyers, environmental groups and civil libertarians have less money and appetite for drawn-out court fights than during the earlier days of the anti-Trump “resistance.” Trump’s officials will also face friendlier judges because his second-term judicial nominations and a Republican-controlled Senate will only bolster his first-term impact on the federal bench. Judges appointed by Republican presidents already hold the majority of seats on the Supreme Court and six of the 13 regional appeals courts, and two more circuits are within one seat of flipping.

“I suspect they understand they’re going to get sued for just about everything,” said Lee Gelernt, a senior immigration lawyer at the ACLU who argued against Trump’s first-term practice of separating migrant families at the border. “There are going to be some initial quick fights, but it’s ultimately going to be a marathon.”

On birthright citizenship, even proponents of denying citizenship to U.S.-born children of undocumented immigrants acknowledge that the issue would have to be decided in court. The 14th Amendment guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

The restriction, at the time of the amendment’s adoption in 1868, was widely understood to exclude foreign diplomats and native tribes. American Indians later started receiving birthright citizenship under a law passed in 1924.

Some conservatives argue, contrary to scholarly consensus, that the phrase could be used to exclude children born to undocumented immigrants. The simplest way for the administration to implement the change would be to issue a federal form to collect documentation of parents’ citizenship or residency status at birth or add that information to the application form for a Social Security number, according to Eric Ruark, the research director for NumbersUSA, a group that advocates for immigration restrictions.

Reasonable people disagree, so it will be challenged in court,” said Jeremy Beck, NumbersUSA’s vice president of activism. “It probably is going to have to be decided by the Supreme Court.”

The president-elect’s aides also have been exploring how to impose across-the-board tariffs on U.S. trading partners through legal maneuvers that have never been tested, then daring the courts to strike down the measures, according to three people familiar with the conversations, who spoke on the condition of anonymity to relate private talks.

Trump will probably face little difficulty immediately enacting much higher tariffs on China, experts say. But his threat to impose sweeping import duties on Mexico and Canada — much less his campaign proposal to impose them on every single country that trades with the United States — would go far beyond what he pursued during his first administration and rests on far shakier legal ground.

To impose tariffs on every other country in the world, Trump aides have explored several untested strategies, including defending their actions in court by pointing to an obscure provision in a 1974 trade law, the people said. To impose 25 percent tariffs on all imports from Mexico and Canada, as Trump suggested last month, officials have looked at a separate emergency powers law that is the basis for U.S. financial sanctions, not tariffs.

The emergency powers law “is not meant to be used to impose blanket tariffs on Canada, maybe our closest ally,” said Scott Lincicome, director of general economics at the Cato Institute, a think tank that typically supports free trade. Legal scholars are divided on whether the Supreme Court would strike down the executive action, which would almost certainly be challenged by affected countries and business groups.

But Lincicome said the “general legal consensus” is that the law is broadly worded enough that Trump still has a good chance of prevailing in the courts. He also doubted the Supreme Court would aim to interfere with Trump’s tariffs given the judiciary’s long-standing deference to the president’s national security powers.

Affected companies could challenge the taxes in court. During Trump’s first term, a group of vinyl tile importers sued to stop tariffs on Chinese goods. The Court of International Trade upheld the tariffs in 2023, and the vinyl importers’ appeal is pending.

Trump’s team is also planning to push the legal boundaries of the executive branch’s power over federal spending and regulations — an initiative expected to be led jointly by the White House Office of Management and Budget and the nongovernmental “Department of Government Efficiency” overseen by tech entrepreneurs Elon Musk and Vivek Ramaswamy.

Russ Vought, whom Trump tapped to help lead the budget office a second time, has called for resurrecting the presidential authority known as impoundment, which would allow the president to unilaterally cancel spending already approved by Congress. Trump officials have spoken with conservative legal scholars about finding a sympathetic example in which the courts would approve their decision to “impound” some federal funds, said two other people familiar with the matter, who also spoke on the condition of anonymity to reflect private deliberations. A victory could then pave the way for the Trump White House to cut many other federal programs without congressional approval, the people said.

Congress expressly restricted such impoundments in 1974 in response to President Richard M. Nixon’s efforts to unilaterally alter domestic programs, according to the Congressional Research Service. The Constitution assigns Congress the “power of the purse” to control taxation and spending.

But Vought and lawyer Mark Paoletta, whom Trump named as the Office of Management and Budget’s general counsel, have argued that Nixon was right, the 1974 Impoundment Control Act is unconstitutional, and the next administration should revive the practice of refusing unwanted spending. Trump endorsed the approach in a 2023 campaign video.

“When I return to the White House, I will do everything I can to challenge the Impoundment Control Act in court,” Trump said. “With impoundment, we can simply choke off the money.”

Trump has tried to shift funding toward his priorities without congressional approval before. In 2019, his standoff with Congress over funding for a wall on the U.S.-Mexico border led to the longest government shutdown in history, at 34 days. Trump went on to fund construction by declaring a national emergency and taking money from the defense budget.

Musk and Ramaswamy also embraced impoundment during a meeting with lawmakers this month. While Trump has said the pair will work closely with OMB, the “DOGE” is not expected to officially be part of the government, sparing its wealthy leaders from the disclosure and divestment that government officials are required to undergo to guard against conflicts of interest.

DOGE’s unusual setup could invite legal challenges. Specifically, a 1972 law known as the Federal Advisory Committee Act requires outside groups advising the executive branch to hold open meetings and include a range of perspectives. The federal appeals court in Washington upheldthe requirements during the first Trump administration, when a veterans group sued the Department of Veterans Affairs for relying on a trio of advisers based out of Trump’s Mar-a-Lago Club.

Government contractors, grant recipients, benefit recipients, labor unions or watchdog groups would be able to sue to enforce the transparency requirements, said Ben Seel, an attorney with Democracy Forward who litigated the VA lawsuit. A court could order disclosures or, in extreme cases, bar agencies from using recommendations from advisers who broke the rules.

“This isn’t just compliance for compliance’s sake. These are a couple of really closely connected and potentially deeply conflicted, wealthy guys talking about cutting broad swaths of the federal government, that could affect public health and safety, national security, the environment,” Seel said. “At a minimum, the law requires the public have some idea what these guys are up to.”

Musk and Ramaswamy have also said that Trump will move immediately to undo “thousands” of regulations promulgated by federal agencies, possibly through an executive order telling agencies not to enforce certain rules. Such a move would be open to challenge under the Administrative Procedure Act, which requires a long, open process for agencies to adopt or rescind regulations.

The first Trump administration ran out of time to implement an executive order, known as Schedule F, that would have removed job protections from thousands of high-ranking civil servants at many agencies. Biden revoked the order as soon as he took office. The administration then adopted a new regulation this spring that aimed to slow any future Republican administration from re-implemeting the executive order.

Undoing that regulation would ordinarily require a process that can take up to a year, including White House reviews and periods for public comment. Lawyers close to the transition have embraced the idea of fast-tracking a new rule that would effectively overturn Biden’s regulation sooner while they push ahead with reestablishing Schedule F.

“With a legal obstacle you can generally go over, you can go around or you can go through it. But I think the answer is going to be all of the above,” said Paul Dans, who implemented the policy at the end of the first Trump administration as Office of Personnel Management’s chief of staff and then led the Project 2025 policy blueprint for the next Republican administration. “Full implementation may not happen right away, and it may not happen in the way it was initially conceived, but it will happen.”

Lawyers are already recruiting workers who could sue if they are reassigned or removed in a second Trump administration, according to an email reviewed by The Washington Post. Those lawyers declined to comment.

Lisa Rein and Hannah Knowles contributed reporting.