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Of possible interest:
My Interview with the Frankfurt Allgemeinen Zeitung (In English translation):
As always, I’d very much appreciate any reactions you may have,
Bruce
Frankfurter Allgemeinen Zeitung (May 2, 2025)"Trump is Acting in a Profoundly Unconstitutional Fashion"Interview of Bruce Ackerman by Justus Bender
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Bruce Ackerman is a renowned constitutional scholar in the United States. He believes that the voters have more power to reject Donald Trump’s agenda than the courts do.
Professor Ackerman, many observers believe that the American Presidency is an all-powerful office. Is that true?
No. During its first 150 years, the American presidency functioned in ways that resemble the contemporary German presidency. For example, when Thomas Jefferson was elected, he had only two assistants on his staff; Ulysses S. Grant had three; Theodore Roosevelt had six. Except during wartime, the Presidency played a largely symbolic role. The turning point came when Franklin Roosevelt won four consecutive elections. He was a charismatic leader, projecting a masterful voice on the radio – presenting a weekly Fireside Chat to enormous numbers of listeners in ways that mobilized their support for massive increases in the powers of his office.
Can Presidents today, for example, impose tariffs on imports?
Yes. They have broad authority to do so.
Many statutes only authorize tariff increases when required for national security. While Trump has invoked these emergency provisions, California has gone to court to establish that there is no factual basis for his claim.
Even if California succeeds, Trump could take advantage of other statutes that authorize presidents to raise tariff rates significantly without the need to declare an emergency. These statutes will enable him to continue his tariff policies. While they are extremely controversial, they are not legally outrageous.
But does Trump also have the legal authority to abolish “independent agencies” like USAID which is dedicated to international assistance?
No. He is acting in a profoundly unconstitutional fashion in this area. Indeed, the trial judge considering the question has already issued a compelling opinion requiring Trump to halt his effort to destroy AID – emphasizing fundamental issues that the Supreme Court may well find persuasive when it reaches its final decision.
Why?
Permit me to take a historical detour and go back to 1887, when the Interstate Commerce Commission was established as the first “independent” agency with the aim of preventing railroads from charging monopoly prices to shippers sending their products across the country. To assure “fair and reasonable” rates, the Commission was provided with an expert staff of trained economists. But this would not suffice to assure their professional integrity – since the sitting president would be in a position to appoint Commissioners who could abuse their power by ordering their staffers to set rates that would help the president’s political friends and hurt his enemies. As a consequence, the statute only permitted sitting presidents to appoint Commissioners if their nominees gained the consent of two-thirds of the Senate – giving institutional credibility to the agency’s claim to “independence.” Over the course of the next century, the independence of different agencies was achieved through different institutional devices – with sitting presidents sometimes trying to crash through the barriers that earlier statutes had created to assure professional integrity.
By whom?
By Congress, through legislation.
Which the President cannot unilaterally change?
Absolutey not. The most notorious incident involved the independence of the CIA which, from its statutory creation in 1947, can only be deployed for foreign intelligence operations. Nevertheless, Richard Nixon ordered it to join the FBI in spying on George McGovern’s presidential campaign, leading to Nixon’s impeachment by the House of Representatives and his resignation from the presidency. Sixteen years later, Nixon once again reflected on his role in the Watergate Affair, and explicitly conceded that, in violating the CIA’s independence, he had created a precedent which could propel the presidency down the path to tyranny. In recognizing the magnitude of his blunder, Nixon was demonstrating remarkable thoughtfulness – whatever else one may say about him.
So Trump would require a new statute in order to abolish an agency previously established by statute?
Yes, and he utterly denies this. He claims to be the supreme leader of all agencies, and in doing so, violates another statutory foundation of the American regulatory state, whose significance is – unfortunately – rarely mentioned in newspaper headlines: the Administrative Procedure Act (APA).
What are its key provisions?
Enacted in 1946, the APA has provided the basic framework for the legitimate exercise of presidential power over the past eighty years. Executive agencies are not only forbidden from making concrete decisions without granting affected individuals a fair hearing. They are typically required to engage in an elaborate deliberative process before their policy initiatives can transform themselves into legally binding regulations. When, for example, the Securities and Exchange Commission seeks to revise existing rules governing the stock market, it must not only provide the public with an opportunity to criticize its proposed initiative. It must then explain why it is not persuaded by these critiques. At that point, however, critics can take their case to federal court – and it is only if the judiciary rejects the merit of their critique that the agency’s new rule gains the force of law. Trump and his appointees are refusing to comply with these requirements. In doing so, they are not only violating the particular statutes which govern the operation of particular executive agencies. They are assaulting the APA – the statute which has served as the foundation of the entire regulatory system. Elon Musk is, for this reason, engaged in an incredibly outrageous course of action.
Musk also represents an agency, the Department of Government Efficiency.
What is the status of this “Department”? Only Congress has the constitutional authority to create a new Department in the executive branch. Indeed, in recognition of this fundamental point, Trump is calling Musk a “Special Government Employee” of his so-called “Department.” Once again, this power-play is both unprecedented and blatantly unlawful.
It is also not up to the President to determine the purposes for which government funds should be spent. The Constitution only grants Congress this authority. What gives Trump the power to finance the incarceration of prisoners in El Salvador?
That is a very important question. Trump claims that conditions in El Salvador have changed since Congress enacted its budget and that he is justified in shifting funds that were previously appropriated for other purposes. But in 1974, Congress and President enacted a statute to confront this very issue. The Congressional Budget and Impoundment Act authorizes the president to delay expenditures for 30 days and try to persuade Congress to authorize his transfer of funds. However, if Congress fails to agree during this brief period, the 1974 statute explicitly denies the president permission to transfer the funds. Trump is refusing to obey this law. He is simply asserting the power to fund his presidential activities and, in doing so, not only violates the clear terms of a statute but a fundamental principle of the Constitution.
Let’s assume that an official has been criminally convicted for illegally deporting an American citizen. Is there anything that could prevent Trump from granting the official a pardon for this abuse of power?
No. This is a weakness of the American constitutional system. Trump can pardon anybody for their crimes – with only one exception. The Constitution explicitly forbids presidents from pardoning themselves.
Trump is also deporting American citizens to El Salvador for purposes of imprisonment. Is this legal?
No, citizens cannot be legally deported for any reason. Yet the Administration has plans to deport three million people on the ground that they initially entered the country illegally. The overwhelming majority, however, will challenge this claim and try to establish that they entered in a lawful fashion. It is at this point that the Constitution requires the Trump Administration to provide each of them with a fair hearing to determine the particular facts raised by each case. As a practical matter, however, the Administration lacks the juridical resources to respond to this overwhelming demand for due process. To give Trump the benefit of the doubt, however, I will suppose that government officials somehow manage to correctly identify 75% of its 3 million suspects as illegal entrants. On that hypothesis, it would remain true that 500,000 men and women face deportation despite the fact that that are legal residents of this country. As a consequence, we can expect lawyers to volunteer on their behalf and quickly move up to the Supreme Court for a determination whether the Founding Fathers believed that residents of the United States could be expelled from this country without even hearing them make their case.
And what will the Supreme Court do if Trump doesn’t obey its orders?
This will largely depend on the result of the Congressional elections in 2026 – which will be held amidst the devastating impact of inflation and unemployment generated by Trump’s tariff policies. If this leads to a decisive Republican electoral defeat, the new Democratic majority in the House of Representatives may well impeach Trump once again for his sweeping assault on fundamental principles during his second term as president. Even if he manages to remain in office, moreover, the Republican party will have compelling reasons to nominate a traditional conservative, rather than a MAGA extremist, as their presidential candidate in 2028. This prospect, in turn, will greatly encourage the Democrats to nominate a liberal centrist in their effort to regain the White House. Under this scenario, when voters go to the polls to select the next President, they will be hearing candidates urging them to repudiate Trump’s polarization of politics and to support a Democratic or Republican nominee who will call on Americans to begin a decade-long struggle to reconstruct the foundations of democracy in their country.
So the Supreme Court has no way to stop Trump – the voters have to do it?Correct, it’s up to the voters.
Why does Trump govern by executive orders even though the Republicans have a majority in Congress? He could propose legislation.
The Republicans have 220 representatives in the House and only a razor-thin majority. 140 of these representatives are self-declared Trump supporters, the remaining 80 are traditional conservatives. They would not follow Trump on many issues.
Could they afford that politically?
Many of them represent swing districts, where Trump’s tariff policies will have a negative impact. So, opposing Trump could actually help them. We Americans are confronting a great tragedy, our democracy is destroying itself. But I am grimly optimistic that the tariff policy has made a repudiation of Trump’s authoritarianism more likely.
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