Politics

/

ArcaMax

Noah Feldman: Trump Is testing our constitutional system. It's doing fine

Noah Feldman, Bloomberg Opinion on

Published in Op Eds

The Trump administration is subjecting the U.S. constitutional system to a stress test. We’re on the treadmill, with instruments recording everything that’s happening.

Nearly every day since taking office, President Donald Trump has done something unlawful that makes the treadmill go a little faster. He has purported to ban birthright citizenship; fired 17 inspectors general; briefly frozen federal spending; and most recently, taken steps to shutter the U.S. Agency for International Development.

That’s not counting the tariffs imposed on Mexico, Canada and China, which would probably-but-not-definitely be upheld by the courts as a lawful exercise of power delegated by Congress.

When these stressors are introduced into the system, the courts swing into action and block Trump’s executive overreach. Congress protests — or is supposed to — that the president can’t override federal laws that direct spending or establish agencies. If those things happen, the system equilibrates. Instead of degrading, the stress test shows the system works and what might need some fixing.

How long will the stress test continue? No one knows for sure. It’s been two weeks and Trump still seems able to come up with a headline-capturing power grab every day or two. What is certain is that the president can’t sustain this rhythm forever. At some point, Americans will demand that he start doing his main job, which is making the executive branch function.

If you’re watching Trump closely, as I am, your heart rate has probably been going up. Mine certainly has. That’s because the big question for our democracy right now is the same one that arises during any stress test: Will our heart hold out?

My bet is on survival. So far, Trump’s latest version of constitutional quasi-chaos hasn’t swamped the system. I’m tempted to suggest that we try to manage our anxiety, even as we keep running harder. Anxiety, after all, can also raise your heart rate.

Consider what’s happened so far. The president can’t change the Constitution, so Trump’s executive order claiming to roll back birthright citizenship is beyond his power. A court has already said so, blocking the order from going into effect. Trump could appeal all the way to the Supreme Court, but it’s not going to make any difference. The high court is not going to announce a brand-new, made-up interpretation of the 14th Amendment.

Should the fired inspectors general choose to sue for their jobs back, they would likely win on the grounds that the law requires the president to inform Congress before taking such action. That would be nice for the rule of law. But they might choose not to sue since all Trump would have to do is fire them again, this time giving Congress proper notice.

As for the ill-fated spending freeze, which also could have been done legally if Trump had given notice to Congress, a court blocked it within hours. Trump then folded and lifted it.

 

That brings us to USAID, a federal agency responsible for delivering humanitarian aid around the world. Trump can’t unilaterally shut down a federal agency created by Congress, as former senior White House lawyer Tess Bridgeman has pointed out. Money appropriated by Congress for specific purposes must be spent for those purposes under the Impoundment Act. Civil service employees can sometimes be let go from their jobs when there is a reorganization leading to a reduction in force; but that’s not what’s happened here — at least so far. If Trump doesn’t follow the law regarding USAID, there will be more lawsuits, which he will lose.

Those taking notice of all this systematic (and unnecessary) illegality are understandably concerned that Trump might ignore court orders. That would generally count as a constitutional crisis — the real thing, not the stress test.

Yet Trump, who did not ignore court orders in his first term, is unlikely to defy a judicial decision. The Supreme Court has six conservatives, three of them Trump appointees. The single worst thing he could do to alienate the justices would be to ignore a court order. No matter how conservative the justices might be, their primary identity comes from their role as interpreters of the Constitution and laws. They might tolerate a lot from Trump, but they won’t tolerate direct defiance of the authority of the judiciary.

Relying on Trump to act rationally might seem like a poor idea. Nevertheless, it’s worth remembering that the flurry of the last two weeks is intended to make headlines. Fear for the system can be combined with serious worries about the effects of Trump’s policies — all of which leads to panic and more headlines. For now, let’s take the stress test one burst at a time, and try to keep breathing.

_____

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

_____


©2025 Bloomberg L.P. Visit bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.

 

Comments


 

Related Channels

ACLU

ACLU

By The ACLU
Amy Goodman

Amy Goodman

By Amy Goodman
Armstrong Williams

Armstrong Williams

By Armstrong Williams
Austin Bay

Austin Bay

By Austin Bay
Ben Shapiro

Ben Shapiro

By Ben Shapiro
Betsy McCaughey

Betsy McCaughey

By Betsy McCaughey
Bill Press

Bill Press

By Bill Press
Bonnie Jean Feldkamp

Bonnie Jean Feldkamp

By Bonnie Jean Feldkamp
Cal Thomas

Cal Thomas

By Cal Thomas
Christine Flowers

Christine Flowers

By Christine Flowers
Clarence Page

Clarence Page

By Clarence Page
Danny Tyree

Danny Tyree

By Danny Tyree
David Harsanyi

David Harsanyi

By David Harsanyi
Debra Saunders

Debra Saunders

By Debra Saunders
Dennis Prager

Dennis Prager

By Dennis Prager
Dick Polman

Dick Polman

By Dick Polman
Erick Erickson

Erick Erickson

By Erick Erickson
Froma Harrop

Froma Harrop

By Froma Harrop
Jacob Sullum

Jacob Sullum

By Jacob Sullum
Jamie Stiehm

Jamie Stiehm

By Jamie Stiehm
Jeff Robbins

Jeff Robbins

By Jeff Robbins
Jessica Johnson

Jessica Johnson

By Jessica Johnson
Jim Hightower

Jim Hightower

By Jim Hightower
Joe Conason

Joe Conason

By Joe Conason
Joe Guzzardi

Joe Guzzardi

By Joe Guzzardi
John Micek

John Micek

By John Micek
John Stossel

John Stossel

By John Stossel
Josh Hammer

Josh Hammer

By Josh Hammer
Judge Andrew Napolitano

Judge Andrew Napolitano

By Judge Andrew P. Napolitano
Laura Hollis

Laura Hollis

By Laura Hollis
Marc Munroe Dion

Marc Munroe Dion

By Marc Munroe Dion
Michael Barone

Michael Barone

By Michael Barone
Michael Reagan

Michael Reagan

By Michael Reagan
Mona Charen

Mona Charen

By Mona Charen
Oliver North and David L. Goetsch

Oliver North and David L. Goetsch

By Oliver North and David L. Goetsch
R. Emmett Tyrrell

R. Emmett Tyrrell

By R. Emmett Tyrrell
Rachel Marsden

Rachel Marsden

By Rachel Marsden
Rich Lowry

Rich Lowry

By Rich Lowry
Robert B. Reich

Robert B. Reich

By Robert B. Reich
Ruben Navarrett Jr

Ruben Navarrett Jr

By Ruben Navarrett Jr.
Ruth Marcus

Ruth Marcus

By Ruth Marcus
S.E. Cupp

S.E. Cupp

By S.E. Cupp
Salena Zito

Salena Zito

By Salena Zito
Star Parker

Star Parker

By Star Parker
Stephen Moore

Stephen Moore

By Stephen Moore
Susan Estrich

Susan Estrich

By Susan Estrich
Ted Rall

Ted Rall

By Ted Rall
Terence P. Jeffrey

Terence P. Jeffrey

By Terence P. Jeffrey
Tim Graham

Tim Graham

By Tim Graham
Tom Purcell

Tom Purcell

By Tom Purcell
Veronique de Rugy

Veronique de Rugy

By Veronique de Rugy
Victor Joecks

Victor Joecks

By Victor Joecks
Wayne Allyn Root

Wayne Allyn Root

By Wayne Allyn Root

Comics

Joel Pett Bill Day Gary Markstein Dana Summers David M. Hitch Gary Varvel