Trump’s Constitutional Cleanup

WSJ, Kimberley A. Strassel, Feb. 20, 2025

The administration is courting lawsuits that could dismantle the Washington machine.

Franklin D. Roosevelt fundamentally redefined the purpose of the federal government, setting off an era of ever-expanding Washington scope and reach. Nearly a century later, Donald Trump’s White House is taking it on itself to challenge the legitimacy of some foundations of that expansion. The left calls this a constitutional crisis. How about a constitutional cleanup?

The sheer volume of Mr. Trump’s actions can make it hard to distinguish between the merely aggressive and the truly striking. In the former category are the Department of Government Efficiency’s moves to cut the size of the federal workforce, change civil-service rules and eliminate wasteful spending. These moves are unconventional—most presidents roll with the bureaucracy they are given—but hardly lawless. Progressive litigators may soon discover presidents have a lot of authority to manage employees and programs.

It’s the truly striking class that deserves note. This is the growing list of Trump actions deliberately designed to provoke a judicial review of the legality of longstanding Washington features. Congress spent a century creating dozens of agencies that blur the boundaries between executive, legislative and judicial power, while the administrative state produced thousands of rules that diverge from congressional intent. Constitutionalists have long disputed the legality of those actions, but over time even most critics succumbed to the status quo. To see the White House revive that fight—audaciously questioning the foundations of the D.C. architecture—is remarkable.

Mr. Trump unveiled the latest zinger this week, detonating what the American Action Forum’s Daniel Goldbeck labeled a “thermonuke deregulatory warhead.” The president ordered agency heads to scour every regulation and bit of guidance under their remit and make lists of those that violate the constitution, exceed legislative power, go beyond the clear words of a statute or harm the national interest.

The White House is laying the groundwork to declare hundreds of rules null and void on grounds that they weren’t lawful in the first place. Will it get sued? Yes, and the White House knows it. The clear hope is to build on recent Supreme Court rulings that rein in the bureaucratic state.

The thermonuke followed a separate executive order taking aim at agencies that Congress created to perform executive functions (administer laws) yet left free of executive control. They instead report to Congress. These congressional minions—now numbering far more than 100—populate Washington, and many flex far bigger regulatory muscle than even cabinet departments. They include major agencies like the Federal Communications Commission and the Securities and Exchange Commission and smaller outfits like the Election Assistance Commission and the African Development Foundation.

Mr. Trump has ordered independent agencies to submit all proposed regulatory changes to the White House for review. Cue freak-out. Pair this with a separate order this week drastically reducing the function of a handful of smaller independent agencies, as well as his recent firing of National Labor Relations Board member Gwynne Wilcox (despite statutory restrictions on a president’s removal authority). The White House is actively courting a lawsuit that will ask courts to reconsider a 1935 ruling that upheld independent agencies. Ms. Wilcox has already sued.

It also wants clarity on Congress’s 1978 law creating inspectors general—congressional watchdogs that sit within the executive branch and conduct investigations. This is a separation-of-powers nightmare, an issue Mr. Trump is raising with his decision to fire 17 inspectors general his first week in office. While the president has the undisputed power to remove inspectors general, Mr. Trump flouted Congress’s rule demanding he provide it 30-day notice. Eight of those dismissed have sued to be reinstated, what the White House surely expected. Watch now to see if Mr. Trump also flouts congressional strictures as to who he is allowed to name as replacements.

Another fight that is likely coming: impoundment, or the presidential power to decline to spend full amounts appropriated by Congress. So far Mr. Trump has simply paused Biden-era spending. But he has argued that a 1970s law restricting a president’s impoundment power is unconstitutional, suggesting the administration may seek to tee up a lawsuit here, too.

Note that what Mr. Trump is doing is very different than Barack Obama’s practice of ignoring inconvenient laws, or Joe Biden’s habit of searching through dusty statutes to find some contorted rationale for a new exercise of power. This administration hopes its actions will compel the judiciary to re-examine the constitutional underpinnings of today’s heaving federal infrastructure.

Win or lose, the effort is long overdue. Vigorous debate over the powers and structure of government ought to be a feature of every administration. What should worry us isn’t that Mr. Trump is doing this now, but that our drowsy political system considers it an anomaly.