By Prof Upendra Baxi
For students of American governance, purportedly plenary Executive Orders (EO, hereafter) are not a new phenomenon at all—these are as old as the presidency of George Washington. They present the binding policy of the administration and direct its enforcement policies “by leveraging the enforcement and buying power of the federal government” estimated at US $750 million (see, the commentary by Stacey Hawkins, 27 February 2025, Brookings.edu).
It is immaterial how the governmental policy is judged, as whether “moral” (progressive), “immoral” (regressive), or even “amoral” (as escaping ethical evaluation altogether). What matters is that the EOs express a policy of the regime in power and even when these do not have “the force of law”, these have wide-ranging effects. Widely cited is President Lyndon B Jhonson’s EO 11246 that established the policy of affirmative action by controlling the conduct of government contractors, which was later modified by the Congressional Act on Civil Rights. In many ways, US President Donald Trump thus followed a time-honoured tradition of passing EOs, even though he displayed remarkable public and media zeal in passing a flurry of orders.
A widely reported SCOTUS (Supreme Court of America) decision recently rejected President Trump’s (POTUS: President of the United States) wild and wide plenary powers—here to issue EOs to freeze $2 billion in foreign aid. It is the first notable SCOTUS ruling that, in a 5-4 opinion, upholds a federal court order requiring that payments be made on AID contracts that have already been completed. The Memo to employees advising agency personnel to work remotely, was widely protested by affected employees in Washington DC.
The Court rejected this bid to freeze some $2 billion in foreign aid payments. It, in its first significant ruling on a legal challenge to the Trump administration, voted 5-4 to uphold a lower court order requiring that payments be made on aid contracts that have already been completed. Significantly, the justices said the federal judge who ordered the resumption of payments for contracts with the US Agency for International Development (USAID) and State Department “should clarify what obligations the Government must fulfil”.
Judge Samuel Alito wrote a dissent that was joined by the three other conservative justices. “Does a single district court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?” Justice Alito wrote: “The answer to that question should be an emphatic ‘No”, but a majority of this Court apparently thinks otherwise”. “I am stunned,” added Justice Alioto.
It is significant that Justice Amy Barrett, a Trump appointee, voted with the three liberal justices on the nine-member Supreme Court; widely regarded as conservative, she joined John Roberts, the chief justice. (Already, this has earned her cries of “betrayal”; war cries of MAGA folks who have even called for her impeachment.)
It is a matter of some surprise that the matter was posted before SCOTUS and accepted by it, when all that District Judge Amir Ali, (a Biden appointee) had done was to issue a temporary restraining order last month prohibiting the Trump administration from “suspending, pausing, or otherwise preventing” foreign assistance funds.
Obviously, President Trump’s legal advisors believed that the USAID, the primary organization for distributing US humanitarian aid around the world—health and emergency programmes in around 120 countries—needed to be “downsized”. This emphasis largely comes from Elon Musk, the world’s richest person, to downsize or dismantle huge arenas of the US government. President Trump has said USAID was “run by radical lunatics” and Elon Musk has described it as a “criminal organization” needing to be put “through the woodchipper”. Obviously, the 47th POTUS seems to believe the post-Cold era USA may safely dispense with remnants of “soft power”.
In sustaining the potential for adversity and harm that befalls on the personnel and programmes of overseas aid, by the device of sustaining “temporary injunction”, the Supreme Court of the United States (SCOTUS) has made clear its position that at least completed programmes under which money is owed to contract cannot be the subject to executive humour or fiat.
More recently, federal Judge Boasberg has issued a temporary injunction on the POTUS’ invocation of the Alien Enemy Act of 1798 to assume powers of detention and deportation over resident Venezuelans suspected to be members of Trende Aragua prison “gang”of that country. The learned Justice ordered all planes, on the shores of the country, not to carry the “deported” Venezuelan non-citizens, thus suspending for a while the EO.
The POTUS justified this action on the ground that it was conducting an “irregular warfare” and ‘hostile action”, against the United States. So far, the Department of Justice has not appealed the decision stating that “predatory incursion” and “invasion”, terms used in the 1798 Act, referred to “hostile acts perpetrated by enemy nations” and not to all “non-citizens” in custody. In invoking the unconscionable law, the POTUS revived memories of the traumatised tens of thousands of non-citizens (Japanese, German, and Italians) incarcerated, denied “due process”, and placed in “camps” (only because of ancestry) during the Second World War; for these barbaric acts, the United States Congress and presidents have apologized.
The POTUS may rightly point out that this is what the SCOTUS commanded him to do! In the controversial presidential immunity decision, the Chief Justice of the US Supreme Court, John Roberts, had written (in a ruling last July) granting Donald Trump absolute immunity from criminal prosecution for official acts. The learned chief justice articulated the vision of an expansive presidency; the executive, he wrote, should be “vigorous and energetic”, and free to carry out duties “boldly and fearlessly”. Justice Sonia Sotomayor, one of the three liberal-leaning justices on the SCOTUS, strongly dissented calling it “absolutely indefensible”, as it raised the stature of the POTUS to that of “a king above the law”.
There is also the doctrine of the executive unity powerfully articulated by SCOTUS in Selia Law vs Consumer Financial Bureau [140 SCt.2183] which struck down a for-cause removal provision preserving the independence of the Consumer Financial Protection Bureau (CFPB) on the ground that the president has a constitutional right to fire its director for political reasons. [But see, for powerfully persuasive arguments for reversing this judicial “misstep”, David M Driessen, “The Unitary Executive Theory in Comparative Context”, Hastings Law Journal, 72:1-54].
The 47th POTUS echoed Napolean Bonaparte (recently on Musk’s X): “He who saves his Country does not violate any law”. For his very recent comments against that ruling, the POTUS has earned a public reproach from the chief justice of the United States. The comment, read in the context of overt threats that Trump and his people have made against judges who dare do constitutional justice, have raised an “unthinkable” question: is the POTUS willing to defy the rule of law itself?
The approach to an appropriate response ought to take account of 2004 end of the year report by Chief Justice Roberts who wrote that: “Judicial review makes tension between the branches [of the State governance] unavoidable.” But he drew attention to “four areas of illegitimate activity” that “do threaten the independence of judges on which the rule of law depends: “(1) violence, (2) intimidation, (3) disinformation, (4) threats to defy the lawful judgments”. The learned chief justice cited United States Marshal Service statistics to show that the “volume of hostile threats and communications directed at judges has more than tripled over the past ‘decade’ and approximately fifty individuals have been criminally charged”. He concluded: “violence, intimidation, defiance directed at judges because of their work undermine our Republic, are wholly unacceptable.”
A flashback to the Indian legal scenario reveals some notable concern with the threats of violence against justices and of the “threats within” as the former Chief Justices Ranjan Gogoi and Jagdish Singh Khehar have recently highlighted. But a significant difference between the USA and India is that all recognized political parties in India agree to let the law run its course; they have accepted constitutional imperative to respect judicial decisions regardless of how the judicial outcomes affect political itineraries and even fates.
This is one of the Indian achievements that the American bicentennial constitutionalism may emulate for the survival (and even revival) of constitutionalism, now under crisis. Both constitutional cultures should continue to learn, even at some political cost in aggressive pursuit of populist policies, that the safety of the democratic republic requires a high, and unwavering, respect for the integrity of the judicial process, power, and function. Constitutional separation of powers among the three branches of the State requires nothing less than preservation of rights and freedoms which remain areas of joint enterprise between the executive, judiciary, and the legislature.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer