Not only has President Donald Trump attempted multiple sweeping policy changes in fewer than a third of the proverbial first 100 days of his presidency, he is also doing so almost entirely without new legislation. That might come later. For now, he is aggressively using executive orders—66 in total, as of February 13. And he is unleashing Elon Musk’s DOGE—an entity whose own legal status is innovative, murky, or a bit of both—on federal agencies.
Trump’s opponents are crying foul. With Republicans in control of both the legislative and executive branches, they have few options. The main one is to sue in federal courts, which they have done with at least some tentative success. At the top of the federal judiciary, of course, sits a Supreme Court dominated by conservatives, three of whom Trump appointed in his first term.
Has Trump bent or broken laws or the Constitution in his rush to “make America great again”? The Supreme Court’s ultimate answers could shape the course of his presidency—and either preserve or revamp the federal government as we know it.
If anyone knows how to think about the rule of law in post–vibe shift America it’s Jeffrey Rosen, president and CEO of the National Constitution Center, and a professor of law at George Washington University. Rosen’s latest book, The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America, made the New York Times bestseller list.
Charles Lane: Washington is somewhere between amazed and flabbergasted at Trump’s executive orders. What’s the best historical comparison to this first-month flurry of activity?
Jeffrey Rosen: The first-month flurry of executive orders by President Biden—who was using them to undo the executive orders of President Trump’s first term! In his ambition to remake the federal government, however, President Trump calls to mind President Andrew Jackson’s establishment of the “spoils system.” (The phrase comes from Senator William Marcy’s comment after Jackson’s election win in 1828: “To the victor belong the spoils.”) Claiming that John Quincy Adams’ federal civil service appointments were corrupt because they opposed his election, Jackson replaced them with his loyal supporters.
CL: The phrase constitutional crisis is getting a workout from President Trump’s critics. What is a constitutional crisis, strictly speaking, and to what extent does the situation now fit that definition?
JR: The most widely accepted definition of a constitutional crisis is when a president openly defies an unambiguous ruling by the Supreme Court. That would represent a breakdown in the rule of law, and it’s never happened before in American history. So far it hasn’t happened in the Trump administration.
CL: Trump’s critics also say that the condemnation he, Elon Musk, and Vice President J.D. Vance have aimed at judges who ruled against the administration indicates the kind of defiance that could lead to a constitutional crisis. Help us understand where to draw the line between appropriate and inappropriate presidential criticism of the courts.
JR: Presidents since Jefferson have insisted on their ability to interpret the Constitution in ways that differ from the courts. Lincoln said he disagreed with the reasoning of the Dred Scott decision and would only apply it to the parties in the case—both Lincoln and Congress refused to accept the Court’s conclusion that the Missouri Compromise was unconstitutional. Going beyond criticizing the reasoning of decisions and attacking individual judges as corrupt partisans simply because they rule against you violates longstanding norms and undermines the legitimacy of the courts. Some populist presidents, such as Theodore Roosevelt, came up to this line—attacking individual Supreme Court justices by name. As Chief Justice Roberts has suggested, it’s a bad precedent and it threatens the rule of law.
CL: It’s been said that Americans would be surprised to learn just what the Constitution actually permits their government to do. Of the Trump administration’s most controversial moves, which one has been heavily criticized despite being legal and constitutional?
JR: Perhaps the best example would be the Department of Justice’s decision to dismiss the indictment of New York mayor Eric Adams on corruption charges. It seems like a permissible exercise of the president’s inherent power to exercise prosecutorial discretion, even if it violated longstanding Department of Justice norms.
CL: Tell us more about why it’s permissible—and what norms it broke. The Free Press editorialized against the DOJ’s move and praised the prosecutor who defied it. Were we wrong?