The Outlandish and the Lawless

Trump’s Flagrant Serial Violations of the “Take Care” Clause

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Conforming to the blueprint of Project 2025, Donald Trump has issued a dizzying and violent series of executive orders that have uprooted the lives of executive branch employees and others around the world.

It’s clear that the volume and pace of these actions are part of the strategy. Some have provoked outrage that faded and gave way to dumbfoundedness at the next dislocating move. Others have virtually eluded public focus in the roaring rapids of the entire package.

They all share a flat disregard for constitutional constraints.

Those of us who have tried to focus on the legal infirmities of individual explosions in the cannonade have pointed out particular arguments for combating these measures.

For one, the administration’s frontal assault on birthright citizenship appears irreconcilable with constitutional text, particularly the first clause of the 14th Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

More on that below, but it certainly looks as if that text, part of the highest law of the country, defeats Trump’s mean-spirited effort to punish the children of undocumented immigrants.

But individual pushback against particular outrages overlooks the categorical dereliction that extends to so many of Trump’s measures.

We’ve heard a fair bit during this dark stretch about the theory of the unitary executive, the core of which is the idea that the president, unique in the constitutional scheme, is the repository of all the power granted in Article II. He or she commands an immense staff to help in the execution, but it is the person of the president in whom the executive power resides. That’s in contrast to the legislative and judicial powers, divided among hundreds, if not thousands, of separate government employees.

But what proponents of the unitary executive theory don’t seem to talk as much about is the core constitutional command that the unitary executive is charged with upholding.

It’s straightforward: The president shall take care that the laws be faithfully executed.

We learned this basic structure in third grade, though one doubts that Trump was paying attention. Congress passes the laws; the president executes the laws; the judiciary interprets the laws.

Trump’s extended series of military maneuvers constitutes an extraordinary abandonment of his central constitutional responsibility. In fact, that seems to be the precise objective of the president, as well as his henchmen—beginning with the mini-me figure of Elon Musk, who is calling so many shots and whose official status remains a legal mystery.

It’s important to underscore how unprecedented and wholesale a departure from his Take Care responsibilities Trump’s young tenure has been—particularly his efforts to push the legal limits of established executive power. While testing these limits is relatively routine in many administrations, Trump’s actions are on another level entirely.

For example, successive Republican administrations, beginning with Reagan, urged the Supreme Court to overturn Roe v. Wade. They were necessarily pushing against the then-prevailing interpretation of the Constitution. But it was accepted that good-faith arguments in support of strongly held policy positions (here, the anti-choice tenets of Reagan and every Republican president to follow him—with the possible exception of Trump, who has been all over the map) were legitimate.

The appropriate question in judging the legitimacy of those efforts—the analysis that a president should be making in deciding whether to push a change before the Court—is whether there is a good-faith basis for the position.

In the case of Roe v. Wade, for example, successive solicitors general presented arguments to the Court that fell within the bounds of accepted governmental advocacy, as with Reagan official Charles Fried’s argument that the Court should “remove one thread” of its substantive due process jurisprudence.

The effort, of course, tended to frighten and infuriate pro-choice Americans. But the short solution was to vote Republicans out of office—not, say, to impeach the president for a basic failure to Take Care.

When Solicitor General-designate John Sauer stands up in court in support of the administration’s birthright citizenship position, he will have the unenviable task of focusing judges on the 14th Amendment clause that reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The argument is that somehow children of undocumented immigrants are not subject to the jurisdiction—the power—of the federal government, as, for example, certain diplomats are. It is a really lousy argument, self-evidently wrong. If the position held water, children of undocumented immigrants would have no responsibility to pay taxes, obtain driver’s licenses, or conform to the dictates of criminal law.

But the immediate point is that while the argument is far-fetched and outlandish, it is at least arguably within the outer realm of the sorts of actions presidents take in support of policy positions they believe they were elected to pursue.

I say “arguably” because there’s no need to run down whether it falls outside even loose boundaries in order to contrast it with other actions by Trump that are flagrantly lawless and in direct conflict with his Take Care responsibilities.

For instance, mini-me’s recent campaign to shutter the United States Agency for International Development (USAID) is precisely the opposite of taking care. As the Congressional Research Service has explained in a recent paper, the president has no power to shut down an agency created by Congress, which in 1998 passed a statute recognizing USAID.

Any effort to present the demolition as a mere adjustment to the agency’s basic responsibilities is rebutted by mini-me himself. Musk called the agency, which has now been literally shuttered, a “radical-left political psy op” and a “criminal organization” that “needs to die.”

And he was the self-appointed one to kill it. The policy of killing the agency is mean-spirited and shortsighted. But for current purposes, the much more important point is that it’s a simple punch in the nose to Congress. Rather than proffer any legal basis for taking a chainsaw to the agency, Trump and Musk have simply violated the law and dared Congress—or anyone—to do something about it.

And as with many of Trump’s affronts to the rule of law, his insubordination will be rewarded, at least in the short term, because it’s time-consuming and complicated to vindicate the rule of law in court.

There are a few different ways to categorize the overall carpet bombing we’ve witnessed during these initial weeks in office. For many, the most salient lens is the massive damage inflicted on the country and people’s lives. But from another perspective, the most important measure is the degree of departure from the core task that the Constitution assigns the president.

The day will and should come when a different Congress wakes up and undoes many of Trump’s most damaging actions. But some outrages tear at the constitutional fabric in ways that may prove difficult to stitch up, even after Trump leaves the scene. Even as we fight back against the immediate consequences of his hideous rule, it’s critical to fight—to the point of exhaustion and beyond—against assaults on the principles of constitutional democracy. History teaches us that such assaults can, in fact, reach a point of no return.

It’s that longer-range battle that may well determine whether we live up to the blessings and challenges encapsulated in Franklin’s immortal phrase: “[a] republic, if you can keep it.”

Talk to you later.