Thread by @jacklgoldsmith

1/ It’s going to be a wild ride for executive power during Trump 2.0. Here is a quick list of important issues where executive power is likely to be pushed hard, rethought, resisted, and/or, when possible, litigated. What am I missing?

2/ The statutory law of civil service protection and, relatedly, the scope of POTUS’ removal power in the face of statutory restrictions—both for career & non-career officials. (Also: presidential authority to redesignate the head of the Fed.)

3/ The complex Federal Vacancies Reform Act, especially as it operates at outset of the administration. How aggressive and imaginative can Trump be in putting in loyalists atop departments on 1-20? How deeply can he deploy loyalists on 1-20?

4/ Related to last two points: Congress in 2022 made it harder for the president to remove inspectors general and to replace them with presidential loyalists. Are these restrictions consistent with Article II?

5/ Trump has refused to sign agreements under Presidential Transition Act (including ethics pledges), isn’t participating in formal transition, and is cutting out FBI background checks, w/ uncertain legal/political implications for what happens on 1-20, and Sen. confirmations.

6/ Relatedly: What is extent of the president’s control over the secrecy system? Any limits on POTUS’ authority to discard, rethink, or order the conferral of security clearances? Can scattered statutory restrictions on release of classified info constrain POTUS?

7/ The law of impoundment: Can Trump cancel elements of agency budgets or otherwise refuse to spend appropriated $? Implicates Impoundment Control Act, old Rehnquist OLC op. on Art. II power, & recent Supreme Court decisions expanding POTUS’ discretionary law enforcement power.

8/ Many already-much-mooted questions about recess appointments.

9/ DOGE as described by Trump should be governed by the transparency and recordkeeping requirements of the Federal Advisory Committee Act. Will OLC deem all or some of FACA unconstitutional (as OLC head Scalia once argued)? Will DOGE be enjoined for FACA noncompliance?

10/ Will DOGE (as Ramaswamy suggested) corral major questions doctrine and Loper Bright to help kill agency rules? Or will those precedents stand in the way of DOGE’s initiatives? Some of both? (Same questions for other Trump deregulatory initiatives.)

11/ Relatedly: Will major questions doctrine check Trump’s tariffs pursuant to super-broad congressional authorizations? Many other questions on relationship between MQD and broad presidential statutory authorization in foreign affairs/national security.

12/ Relatedly: Can (and will) POTUS declare that ByteDance has performed a “qualified divestiture” under the PAFACAA, and, since the law makes that a presidential “determin[ation],” can courts review the decision, assuming someone has standing?

13/ Many questions on the various legal bases for the use of the National Guard and the regular armed forces inside US for various ends, including quelling violence, deportation, and border management.

14/ What are the effective substantive and procedural legal hurdles to deportations, mass or otherwise, and the contemporary relevance (if any) of the Alien Enemies Act, etc.

15/ What are the effective legal or other hurdles (if any) to DOJ investigating/ prosecuting government officials for acts in office (beyond the ones that Trump himself deployed in trying to resist his various investigations/prosecutions)?

16/ Is Congress’s prohibition on the president withdrawing from the North Atlantic constitutional? If Trump withdraws from the treaty, can the issue be tested in court? (Standing, political question doctrine, etc.)

17/ We are going to learn a lot about the contours of Article II in the next four years. (We are also going to learn a lot more about Supreme Court doctrine on standing and emergency orders.) Again, what am I missing?