How Trump's Lawbreaking Strategy Is Designed to Work

They know a lot of their actions will be struck down. That's part of the plan.

Thank you for reading The Cross Section, and if you find my work valuable and would like it to continue, consider becoming a paid subscriber. This site has no paywall, so I depend on the generosity of readers to sustain the work I present here. Thanks.

Donald Trump and the people who work for him have done something remarkable: In just over a week, they have managed to exceed the expectations of even those of us who spent the last year warning that a second Trump administration would be much, much more damaging than the first one was.

For all the articles I and others wrote about Project 2025 and the greater degree of preparation and planning they were engaged in, there was one thing we underestimated: The sheer aggression they would bring to this new Trump term. “We’re going to do things that people will be shocked at,” Trump said on his first day in office, and he wasn’t kidding.

That aggression is manifest everywhere you look; in fact, just keeping track of the administration’s appalling actions over the course of a single day is almost impossible because there are so many. If you follow the news closely, multiple times a day you’ll probably find yourself saying, “Wait, can they do that?”

Much of the time, the de jure answer will be no, they can’t do that. The law does not allow it. But the de facto answer will be yes, they can do it. Because they’re doing it.

This is a very intentional strategy, one that represents a reorientation with regard to the constraints of the law and the Constitution. Before I explain how it works, let’s remind ourselves of some of the things Trump has done since taking office:

• Declared an end to birthright citizenship, which is explicitly enshrined in the 14th Amendment.

• Declared that he was delaying the ban on TikTok, despite the fact that the law banning the app states that the president can only do so if an agreement is in place to sell it to an American company.

• Fired 17 inspectors general, despite the fact that the law states that they can only be fired for cause and after a 30-day notice.

• Fired Gwynne Wilcox, a Democratic member of the National Labor Relations Board, in an obvious attempt to deny the NLRB a quorum and thus render it unable to hear cases involving mistreatment of employees, in violation of Supreme Court precedent stating that presidents may only fire NLRB members in cases of neglect or malfeasance. He also fired two members of the Equal Employment Opportunity Commission; this was illegal for the same reason.

• Made clear that he and his incoming OMB director Russell Vought intend to violate the Impoundment Control Act and refuse to spend money that Congress has appropriated.

• Suspended almost all government grants amounting to hundreds of billions of dollars, supposedly so they can be reviewed to determine if they align with Trump’s priorities. This too is illegal, because this money has already been appropriated by Congress; the president can’t just decide that he doesn’t like the spending that is already mandated by law and refuse to carry it out.

• Reimposed Schedule F, which would reclassify tens of thousands of civil servants so they can be fired and replaced by Trump loyalists, despite the fact that a regulation promulgated under the Biden administration forbids precisely this move. That requires the Trump administration to go through a lengthy regulatory process; they are simply ignoring that requirement.

By the time you read this, there will probably be a few more. Here’s how the strategy is designed to work:

1. Make a blatantly illegal policy change.

2. While the opposition gets together its legal challenge, implement the policy change.

3. Use every available tactic to delay the legal process. While that process grinds along, continue deploying the policy change. And who knows, maybe the Supreme Court will back you up in the end.

In some cases, a judge may quickly strike down the move the administration has made or issue a stay that prevents it from moving forward; that’s what happened on birthright citizenship and the spending freeze. But where that doesn’t happen, they’ll be able to accomplish their goals in the meantime, even if the action is eventually halted. And there’s always the possibility that the Republican supermajority on the Supreme Court will bless their illegal action in the end, either striking down the law they’re violating or carving out a “Trump gets to break the law” exception, which they’ve done before.

For instance, let’s say the Schedule F case eventually gets to the Supreme Court. By the time it does, the administration may have already fired thousands of civil servants. Even if Trump loses the case, those agencies will have been Trumpified in the interim. Will the fired civil servants return to work, or will they just stay at whatever new jobs they got while they waited for the case to be resolved? Most will probably do the latter. So the fact that they could go back to their old government jobs will be irrelevant, and the agencies they left behind will still be transformed.

This time is different

Every president tries to push the limits of their authority now and again. Sometimes they devise creative ways around a particular law; for instance, Barack Obama created the Deferred Action for Childhood Arrivals (DACA) program essentially by de-prioritizing enforcement of immigration rules against people who were brought to this country as children, using his ability to set law enforcement priorities as a way of allowing them to remain. There were years of arguments about whether Obama had the legal right to act in this way, including before the Supreme Court, but ultimately the program was able to continue.

What’s happening now is very different. Trump isn’t looking for ways to avoid the restrictions the law creates; he’s simply saying that he doesn’t have to obey the law. In any other administration, there would be times when an idea would come up, and the lawyers would say, “Sorry, we can’t do that — it’s against the law.” That regularly happened even in the first Trump administration.

It will not happen this time around, and not only because the legal personnel have been carefully vetted for absolute loyalty to Trump (to take just one example, he was often thwarted in the first term by those who served as White House counsel; the current occupant of the job is David Warrington, who auditioned by serving as one of Trump’s personal lawyers). But now, breaking the law has become its own strategy, one to which the entire administration appears committed. It won’t work every time, but it will work far too often.