Between renaming the Gulf of Mexico, ‘Gulf of America’, scrapping EDI initiatives and attempting to start trade wars by imposing tariffs on multiple nations, it’s been a turbulent 6 or so weeks so far of his presidency.

Many of Trump’s new policies introduced in the first month of his administration have been done through the signing of Executive Orders. These require no approval from Congress, meaning that they give the President significant power. Presidents throughout history have used executive orders to ensure their policies are enacted. For example, Biden used executive orders to rejoin the Paris Agreement after Trump began the process of withdrawing the US during his first time in office, a move he has since reimplemented. Trump also used them during his last term in his attempts to implement a travel ban from Muslim-majority countries.

Trump has already begun fighting the courts and, for now, the President has been on the losing side

Note the use of the word ‘attempt’. This highlights the main limitation of executive orders. While they are immune to Congressional disapproval, they are not immune to the courts which can still block an executive order deemed to be illegal or unconstitutional. This significantly hindered Trump’s travel ban during his first term, with courts ruling his executive orders violated equality principles in the Fifth Amendment of the constitution. Even laws passed by Congress are liable to be struck down by the courts. For example, Obama’s plans for health insurance expansion through the Affordable Care Act (Obamacare) were blocked as the Supreme Court ruled with states that argued the threat of losing funding was unduly coercive.

So where does Trump get this notion of power when the evidence above shows the President is not an all-powerful dictator of policy? He likely believes in an expansive version of the unitary executive theory which argues the President, as head of the US government, should have total control over the government and should decide on his own who is part of that government. It originated during Nixon’s presidency and has been used to justify actions, such as so-called ‘Enhanced interrogation’ or state-endorsed torture during the Presidency of George W. Bush. Trump has already begun fighting the courts, and for now, the President has been on the losing side. His executive order to end birthright citizenship in the US, a right guaranteed by the Constitution’s Fourteenth Amendment, was temporarily paused, a move upheld by the appeals court. Similarly, Trump’s plan to freeze federal funding to various government agencies and programmes to “hunt for waste and fraud” was also blocked by the courts.

However, it hasn’t been all bad news for Trump. Just because the courts have the power to block Trump’s policies doesn’t mean they will, and even if they do, the new administration has already made it clear it’s not scared of defying court orders. That federal funding freeze block was found to have been ignored by the government, placing it in contempt of court. In fact, the courts’ refusal to give Trump a substantive sentence following his conviction in 2024 shows they may not be as powerful as they may seem. Its reasoning for a lack of a proper sentence that anything more would be “encroaching upon the highest office in the land”, was weak, considering that Trump was only president-elect at the time of the sentencing, and highlights a level of deference to the presidency, something that will work in Trump’s favour.

The new administration has already made it clear it’s not scared of defying court orders

Another sign of the court’s realignment with the presidency is the leaning of the Supreme Court. During his first term, Trump was able to appoint an unprecedented three Supreme Court Justices pushing the court to a clear 6-3 conservative majority. This is a court that has already shown it is not scared of throwing out old conventions, such as the overturning of Roe v Wade in 2022, a landmark decision by the US Supreme Court that protected the right to an abortion across the US for half a century. Another landmark decision made by the current set of justices was the end of the Chevron Deference, which removes the power for federal agencies to interpret ambiguous laws, a tool it could have used to fight presidential domination.

The President has made a lot of claims about the power of the Presidency, and the reality may be further from what he believes (anyone calling it the Gulf of America?). However, he is still the President of the United States, one of, if not the most powerful position in the world. His actions during his previous terms have ensured that the President’s power has only grown. While the courts have been and will likely continue to be a major factor in limiting Trump’s power, it remains to be seen how much resistance they will force against Trump’s pushing and, in some cases, overstepping of legal and constitutional boundaries.  What is clear is that there is a combination of a Republican president, with a Republican majority in both Houses of Congress, with a Republican-appointed majority in the Supreme Court. In that relationship is the potential for the US to see presidential power expand far beyond what it has seen before.

Image: geralt via Pixabay