In earlier posts—February 25, 2025, and May 20, 2025—I examined proposals by President Donald Trump to enlarge his powers and those of the executive branch. Since then, the president has plowed ahead, issuing a barrage of new executive orders. Hence, this addendum to explore topics not previously covered.
For the most part, I’ll be addressing the legal and constitutional implications of Trump’s actions, not whether they are necessary or desirable from a public policy perspective. My intent is not to resolve these controversial questions, or even to identify all the underlying issues, but rather to raise a few of the concerns that need to be addressed.
Here’s an index, with links to the specific topics that are discussed below:
Deporting university students for acts deemed contrary to U.S. policy
Deporting alleged Venezuelan gang members under the Alien Enemies Act
Deporting Abrego Garcia, by mistake, to a prison in El Salvador
Ending Temporary Protected Status for immigrants from troubled countries
Ending humanitarian parole for immigrants
Banning and restricting travel from selected countries
Preventing Harvard from validating international students
Using the National Guard to suppress immigration protests
Withholding federal research funds from selected universities
Canceling Harvard’s tax-exempt status
Punishing law firms for litigation opposed by the president
Withholding federal funding for New York’s congestion pricing program
Penalizing the Associated Press for not using the label “Gulf of America”
Defunding the Corporation for Public Broadcasting
Sanctioning the International Criminal Court
Bombing Iran without congressional approval
Reversing the Supreme Court’s ruling that carbon dioxide is an endangerment
Revoking California’s environmental regulations
Let’s begin by looking at several immigration-related issues:
Deporting University Students for Acts Deemed Contrary to US Policy
In March, the Trump administration arrested Mahmoud Khalil, who advocated for Hamas in protests at Columbia University. The White House stated: “[T]he allegation here is not that he was breaking the law.” Instead, Khalil was “mobilizing support for Hamas and spreading antisemitism in a way that is contrary to the foreign policy of the United States.” That leads to a series of questions. First, did Khalil’s conduct or his speech trigger the administration’s action? Secretary of State Marco Rubio did not cite any specific behavior, apart from Khalil’s advocacy, that would justify deportation. Accordingly, Khalil’s punishment would seem to cross the line into viewpoint-based speech suppression, notwithstanding the Supreme Court’s ruling in Bridges v. Wixon (1945) that “Freedom of speech … is accorded [to] aliens residing [here].”
The Immigration and Nationality Act (INA) allows deportation if the Secretary “has reasonable ground to believe” that an alien’s acts “would have potentially serious adverse foreign policy consequences.” But there’s an exception: No removal on account of “the alien’s … expected beliefs, statements, or associations … unless the Secretary of State personally determines that the alien’s admission would compromise a compelling U.S. foreign policy interest.” So, question #2: Did Rubio personally make such a determination? Question #3: Based on what evidence? Question #4: Is the INA’s trigger—“potentially serious adverse foreign policy consequences”—so vague as to be unenforceable? And question #5: Does the statute deny due process (i.e., an opportunity to be heard and contest the allegations)?
At the end of May, a Louisiana immigration judge ruled that Khalil is removable, but a New Jersey federal judge held that removal would likely violate his right to due process. Then, in June, the same New Jersey judge ordered Khalil discharged from detention. On June 20, he was released on bail after more than three months in custody. The government will appeal.
Deporting Alleged Venezuelan Gang Members Under the Alien Enemies Act
In late March, the DC Circuit Court of Appeals temporarily halted the deportation of alleged gang members to El Salvador under the Alien Enemies Act. That act is applicable to countries at war with the United States. It hasn’t been used since World War II—the Japanese internment case. Drug gangs are not a country; nor are they controlled by a country; we are not at war with Venezuela; and illegal immigrants are not mounting an invasion or incursion to seize power in the United States. Indeed, if they were, the president could suspend habeas corpus, even with respect to US citizens. The administration’s counterarguments are not very persuasive: First, the judge’s order wasn’t in writing—a debatable rationale. Second, the plane removing the immigrants was in international airspace when the order was issued. That’s not relevant if the alleged gang member was in US custody on a US plane. Bottom line: the government must not have free rein to arrest, detain, or deport any non-citizen accused of criminal acts without due process.
On April 7, the Supreme Court agreed, 9–0, that due process is required; thus, the flights to El Salvador were unconstitutional. The Court didn’t reach the question whether the Alien Enemies Act applied, but later in April and May, the Court (7–2) did temporarily halt the deportations. Meanwhile, courts in Texas, New York, Colorado, and Massachusetts have ruled that Trump may not use the Act to send aliens to Venezuela, Libya, or South Sudan. One federal judge in Pennsylvania has ruled otherwise, albeit insisting on 21 days’ notice and a hearing.
Deporting Abrego Garcia, by Mistake, to a Prison in El Salvador
One of the deportees to El Salvador, Abrego Garcia, was alleged by the White House to be a leader of the MS-13 gang. The administration provided no evidence, and Garcia denied gang membership. A federal judge ordered the administration to return Garcia to the United States before April 8. Two days later, the Supreme Court directed Trump to “facilitate” Garcia’s release. Trump claimed it was up to El Salvador’s president.
In the interim, the United States paid six million dollars to El Salvador, which obviously did not “facilitate” Garcia’s return. So, in mid-April, the judge ordered expedited discovery to determine if and how the administration was complying. Trump appealed, but the Fourth Circuit unanimously denied the appeal. A highly respected conservative judge, J. Harvie Wilkinson, rejected the notion that the government could “stash away residents … in foreign prisons without the semblance of due process.”
Finally, on June 6, Garcia was returned to the United States, where he will now face charges for transporting undocumented immigrants. That allegation stemmed from a 2022 traffic stop, but no charges were filed at the time. Three years earlier, an immigration judge (affirmed by the Bureau of Immigration Appeals) found sufficient evidence of Garcia’s gang membership to detain him temporarily. Garcia then applied for asylum, which was denied, but he was granted a “withholding of removal” order that barred sending him to El Salvador. He was then released from detention, but required to check in regularly, which he did. His illegal removal to El Salvador, followed by his June 6 return, has led to his current trial, at which he will finally be accorded due process.
President Trump has also floated the idea of deporting convicted criminals to El Salvador, even if they are US citizens. But if a citizen commits a crime, federal law requires the Bureau of Prisons to “provide suitable quarters and … safekeeping, care, and subsistence.” Moreover, both government and private-contract prisons are subject to constitutional guardrails. Consequently, US citizens cannot be deported to places that might violate the due process guarantees or the Eighth Amendment’s ban on “cruel and unusual punishment.”
Ending Temporary Protected Status (TPS) for Immigrants from Troubled Countries
In May, the Supreme Court (with Ketanji Jackson dissenting) granted the administration’s emergency application to end Temporary Protected Status—i.e., no deportation—for nearly 350,000 Venezuelan immigrants. The TPS program allows migrants from nations that have experienced national disasters, armed conflicts, or other extraordinary instabilities to live and work legally in the United States. Previously, Homeland Security Secretary Kristi Noem had canceled President Biden’s 18-month extension of the program. Her cancellation was challenged as racially discriminatory and a violation of administrative procedures. A federal judge in San Francisco (affirmed by the Ninth Circuit) agreed and issued a nationwide order to continue TPS pending more litigation. But the Supreme Court stayed the order and rejected (for now) the challenger’s claim that “Nowhere does the statute grant the secretary authority to vacate or rescind an extension.” Thus, the current status: TPS is on hold, pending a merits decision.
Ending Humanitarian Parole for Immigrants
At the end of May, a Massachusetts federal judge ordered Trump to lift his earlier suspension of the US parole process that had allowed temporary admittance of immigrants from Afghanistan, Latin America, Ukraine, Cuba, Haiti, Nicaragua, Venezuela, and elsewhere on humanitarian or public interest grounds. The parole program also covered veterans and relatives of US military personnel. The admittees would be allowed to apply for asylum, Temporary Protected Status, or permanent residency.
The judge said the government’s actions were arbitrary, capricious, and would cause hundreds of thousands of immigrants to become illegal, thus unable to work or provide for themselves and their families. But on May 30, the Supremes intervened and allowed suspension of parole, pending a merits decision.
Banning and Restricting Travel from Selected Countries
On June 5, Trump banned travel from 12 countries—primarily in Africa and the Middle East—and restricted travel from Cuba, Venezuela, and five other countries. That decision came days after an Egyptian man used a flamethrower in an antisemitic attack in Colorado. Paradoxically, Egypt wasn’t among the banned countries. (Cato has reported that only one person has been murdered by a terrorist from any of the 12 banned countries over the last 50 years.)
In 2017, Trump proposed two travel bans, which were rejected by the courts because they discriminated against Muslims and were not supported by evidence of harm to the United States. But in Trump v. Hawaii (2018), the Supreme Court addressed a third version of the ban. Chief Justice Roberts (5–4) held that the president has broad discretion under the Immigration and Nationality Act to reject aliens who are “detrimental to [our] interests.” The Court noted that Trump’s revised ban included non-Muslim countries that inadequately screened applicants, and that all the countries had been identified as national security risks. The Court said okay to the ban, which took effect in 2018. It was abandoned by Biden in 2021.
The latest 2025 iteration relies on a State Department analysis covering a range of countries with vetting issues and a high incidence of immigrants who overstay their visas. Legal challenges are anticipated. They’ll likely question whether the ban is justified and whether it ethnically discriminates. This time around, however, the administration may have to deal with the Supreme Court’s 2022 “major questions” doctrine, which requires an explicit delegation on matters of vital significance.
Preventing Harvard from Validating its International Students
The Department of Homeland Security proposes to deny Harvard access to the Student and Exchange Visitor Information System (SEVIS), which verifies that foreign students are enrolled full-time and thus complying with the terms of their visas. Without that validation, a fourth of Harvard’s enrollees (about 7,000 students) would become immediately deportable unless they transferred to another school. Harvard argues that Secretary Kristi Noem is not authorized to deny access, and that her actions, which were supposedly taken because Harvard has condoned antisemitism, trample on protected speech and are arbitrary, capricious, and retaliatory. On May 29, a Boston federal judge preliminarily halted the administration’s game plan. But on June 5, Trump ordered the same end result to be attained via a different statute, which bans foreigners if they are “detrimental to U.S. interests.” Harvard responds that the foreigners must not be detrimental if they can satisfy the administration simply by enrolling at another college. A federal judge has temporarily halted Trump’s revised proposal.
Relatedly, a California federal judge on May 22 granted temporary nationwide relief to approximately 4,700 of the 1.1 million foreign students now in the United States who had their visas canceled—yet another attempted crackdown on campus antisemitism that the courts have placed on hold.
Using the National Guard to Suppress Immigration Protests
The Constitution authorizes the federal government to protect federal officials and property. That rationale, cited by President Trump in support of sending National Guard troops to Los Angeles, seems incompatible with his apparent disregard for federal officials and property in Washington, DC on January 6. Nonetheless, Trump cites Title 10 of the US Code, which allows him to federalize the Guard to suppress a rebellion or enforce federal law when he is unable to do so with regular federal personnel. Trump also dispatched active-duty military troops, who are ordinarily limited to a support role by the Posse Comitatus Act. They can, however, be used for domestic law enforcement, if and only if Trump were to invoke the Insurrection Act, which he has not done.
More broadly, the federal government cannot compel state officials to enforce federal laws. But, if the states or local authorities refuse to cooperate—as they’ve done in sanctuary cities—the feds can use their own law enforcement personnel. That’s what Trump did when he sent the Guard to Los Angeles to suppress protests directed at his immigration policies. But his actions raised four questions. First, was there illegal conduct that state and local authorities were unwilling or unable to control? Second, if so, did Governor Newsom refuse to provide requisite enforcement manpower? Third, did the protests rise to the level of a rebellion against the United States sufficient to trigger the president’s statutory authority to call the Guard? Fourth, what are the terms of engagement, and could less invasive steps have been taken—e.g., negotiations, physical barriers, non-military personnel? Those are the issues the courts will confront in California’s challenge to Trump’s mobilizations.
On June 12, a federal judge in San Francisco wrote that the protests “fall far short of ‘rebellion’”—i.e., an “uprising against the government as a whole.” And he noted that Title 10 directs call-up orders to be issued “through the governor.” Trump’s lawyers had argued that the order went through the state National Guard commander, who reports to the governor, and, in any event, the remedy, if needed, should simply be to reissue the order. The judge, however, temporarily transferred authority over the Guard from Trump to Newsom. But the judge declined to bar the use of the regular military unless and until soldiers violate the Posse Comitatus Act. On appeal, the Ninth Circuit rejected the lower court’s denial of Trump’s authority. My bet: the appellate court or the Supreme Court will defer to the president’s assessment of events in Los Angeles.
Next, let’s consider several Trump actions directed against specific parties and characterized by critics as retaliatory.
Withholding Federal Research Funds from Selected Universities
The president has proposed withholding federal funds from Columbia University, Harvard, Princeton, Cornell, Brown, and the University of Pennsylvania—supposedly for failure to combat antisemitism and other policies that Trump finds distasteful. By law, however, withdrawal of educational funding requires a hearing and written report to Congress, and cancellation of funds should affect only the offending program, not the entire university. On June 5, the administration went even further, announcing that it might revoke Columbia’s accreditation.
Under the Civil Rights Act, Title VI, which applies to recipients of federal funds, the government might be justified in denying funding to colleges that fail to discipline students who violate federal anti-discrimination policies. But that justification would not extend to Trump’s other directives: ordering universities to reduce “governance bloat,” review faculty plagiarism, and ensure “viewpoint diversity.” Even if Congress had those powers, the president does not.
Canceling Harvard’s Tax-Exempt Status
Nor can the president revoke Harvard’s tax-exempt status. Only the Internal Revenue Service can do that. Section 501(c)(3) of the tax code says religious, charitable, and educational non-profits are tax-exempt unless they participate in political campaigns. To the extent that Harvard is being punished for condoning antisemitic remarks, that plainly is viewpoint-based speech suppression. To the extent that Harvard itself violated federal anti-discrimination policies, taking away its tax exemption seems grossly disproportionate for an infraction that can be remedied by less coercive means, especially since Harvard is a private university, which is not constitutionally constrained.
Yes, the 1983 Bob Jones case denied tax-exempt status because the university engaged in discrimination that was “contrary to established public policy.” But that case was about the expulsion of a student for interracial dating, not about speech. Moreover, the Court’s deference in Bob Jones to the IRS’s construction of the relevant statute might not survive today’s “major question doctrine,” under which laws delegating authority to agencies on important matters must be explicit. Indeed, even if the delegation were explicit, the recent demise of the Chevron doctrine suggests that courts will no longer rubber-stamp agency interpretations. Moreover, executive officials are now (post Bob Jones) barred by law from asking the IRS to conduct an audit or other investigation of tax liability.
Punishing Major Law Firms for Litigation Opposed by the President
President Trump has targeted major law firms that have been involved in litigation against his interests or policies. The firms are being denied security clearances, access to government buildings, and federal contracts, based allegedly on national security concerns. That argument is clearly pretextual, given that several of the targeted firms have avoided Trump’s ire merely by agreeing to perform roughly a billion dollars of pro bono legal services that Trump has approved.
Trump’s crusade raises both right-to-counsel issues under the Sixth Amendment and viewpoint-based speech problems under the First Amendment. Frankly, the matter isn’t a close call. And three federal courts said so on May 2, 23, and 27. Meanwhile, a dozen or so large companies have shifted work to law firms that have refused to strike deals, and key attorneys have resigned from firms that caved. Apparently, the marketplace is dispensing punishment in case the courts fail to do so.
Withholding Federal Funding for New York’s Congestion Pricing Program
In another crusade that may involve political retribution, Trump has withheld federal funds to scuttle New York City’s congestion pricing system, which had been approved under President Biden. The city has sued the Department of Transportation, saying the agency isn’t authorized to rescind Biden’s approval. On May 27, a Manhattan federal judge issued a temporary restraining order blocking the DOT plan, pending further litigation.
Penalizing the Associated Press for Not Using the Label “Gulf of America”
Legal authorities agree that the president is empowered to change the names on US maps, even though Article IV of the Constitution states that “Congress shall have Power to … make all … Regulations respecting the Territory or other Property belonging to the United States.” On the other hand, punishing the Associated Press by refusing to admit its journalists to selected media briefings because they did not use the label “Gulf of America” may well be viewpoint-based discrimination—a clear First Amendment speech violation. The administration’s counterclaim is that the AP was spreading lies. That‘s not a compelling argument, since even misinformation is constitutionally protected speech.
There are, of course, legitimate ways of restricting access to a press conference that obviously has limited capacity. For example: a background security screening, adherence to rules of conduct, seniority, circulation size, and, of course, qualification as a legitimate member of the press. Trump could have used any of those without objection, but he didn’t. In April, a judge temporarily enjoined the president’s executive order on First Amendment grounds; but the DC Circuit held that the AP could be excluded from those briefings held in private workspaces such as the Oval Office, Air Force One, and Mar-a-Lago.
Defunding the Corporation for Public Broadcasting
Taxpayers currently provide about $535 million annually to fund the Public Broadcasting System and National Public Radio—roughly 10–15 percent of their budget. That’s viewed by many on the political right as an unwarranted intrusion by government into an area adequately served by the private sector. They also argue that the net result of the CPB’s public funding is to transfer wealth from less affluent persons (most of whom do not watch PBS or listen to NPR) to more affluent persons (many of whom patronize both networks). Critics insist, nonetheless, that withdrawal of funds should be implemented in a manner that complies with our laws and the Constitution. Trump responds that PBS and NPR don’t present “a fair, accurate or unbiased portrayal of current events.” Perhaps so. But for Trump to condition funding on his assessment of objectivity is yet another First Amendment speech violation. Government may not discriminate against speech based on the viewpoint expressed by the speaker.
Additionally, Congress established the CPB in 1967 as a private nonprofit corporation, independent of the federal government; and Congress barred federal officials from controlling the corporation or its grantees. That means the president cannot act unilaterally, without congressional approval. To his credit, Trump has now submitted a rescission bill to Congress. That’s the proper way under the Impoundment Control Act to cancel expenditures that Congress has already appropriated.
Finally, let’s turn to four miscellaneous Trump items that have also created considerable controversy
Sanctioning the International Criminal Court
The United States and other countries established the International Criminal Court in 1998 to prosecute atrocity crimes. Although the US didn’t ratify the statute, we supported much of the ICC’s work. In February, President Trump issued an executive order imposing sanctions on the court and making it illegal for Americans to assist ICC prosecutions by, for example, sharing evidence, coordinating witness testimony, or communicating information. In response, the ACLU has sued on the grounds that the order restricts First Amendment speech rights and exceeds the authority of the president to impose sanctions. The First Amendment claim seems likely to succeed, notwithstanding the administration’s counterclaim that the ICC threatens U.S. security. More specifically, the president objects to actions against US citizens and allies, including the issuance of an arrest warrant against Israeli Prime Minister Benjamin Netanyahu for war crimes in Gaza. Regardless of the propriety of that ICC action, it isn’t likely to outweigh the speech imposition on Americans who wish to assist the court.
Bombing Iran Without Congressional Approval
The president’s authority in foreign affairs includes the power to wage war as commander-in-chief. But that power has limits. First, it’s about waging war, but not about declaring war, which is Congress’s job. Second, war requires money, and Congress retains the power of the purse.
Originally, the text of the Constitution said that Congress could “make” war. That was changed to “declare” war—thereby establishing that the president can supervise the conduct of the war, but only after hostilities are authorized. Remember, the animating sentiment at the time of the Founding was fear of executive power —return of the king. The president is indeed commander-in-chief of the armed forces, but not commander-in-chief of the entire nation.
To help resolve the debate over wartime authority, Congress passed the War Powers Act in 1973, over a veto by President Nixon. Under that Act, military action is authorized only if there’s a congressional declaration of war, some other statutory authorization, or an attack on US interests. And in the event of an attack, the president has to notify Congress within 48 hours, then withdraw all forces in 60 days unless Congress consents.
There have been five formal declarations of war in US history: the War of 1812, the Mexican-American War (1846), the Spanish-American War (1898), World War I, and World War II. On multiple other occasions, presidents of both parties have acted unilaterally, without congressional assent. But if President Trump persists in that practice, he (like his predecessors) will be violating the Constitution.
Reversing the Supreme Court’s Ruling that Carbon Dioxide Is an Endangerment
In Massachusetts v. Environmental Protection Agency (2009), the Supreme Court ruled that carbon dioxide is a greenhouse gas that Congress must regulate under the Clean Air Act, which covers “any air pollutant” reasonably expected “to endanger public health or welfare.” Trump’s EPA head (Lee Zeldin) now says he will reconsider that so-called endangerment finding in light of the Court’s recent insistence that Congress must be explicit when addressing major questions. Ironically, last year’s Loper decision, ending the so-called Chevron doctrine, could cut against the administration. Now that Chevron is a dead letter, courts will no longer defer to statutory interpretations by administrative agencies, including Trump’s EPA. So, it may require either the Court or Congress, not the EPA, to decide that carbon dioxide is no longer an endangerment.
Revoking Selected Environmental Regulations in California
In May, Republicans passed resolutions (signed by Trump in June) to: (1) revoke waivers granted by the Environmental Protection Agency allowing California to set pollution standards tighter than federal standards; (2) reverse California’s ruling to phase out gas cars and eliminate them by 2035; (3) cancel the state’s requirement that half of truck sales must be electric by 2035; and (4) eliminate state limits on emissions of nitrogen oxide from cars and trucks.
California has challenged the revocations as harmful to public health and the economy. The state also argued that Congress illegally used the Congressional Review Act (1996), which allows a majority in Congress to overturn recent agency rules. California’s objection is that the Act does not permit overturning EPA waivers, some of which are longstanding. In fact, the Senate passed its reversal of EPA’s waivers over the objections of the nonpartisan Senate parliamentarian and an independent watchdog. On the other hand, the CRA provides that revocations of federal rules are not subject to judicial review. Now the courts will have their say.
