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  •   Home > News > International

    The key areas where Trump has been accused of presidential overreach

    Wielding hundreds of executive orders, Donald Trump has set about reshaping the US government during his first month in office. But in doing so, he's raised concerns of an impending constitutional crisis.


    Wielding hundreds of executive orders, Donald Trump has set about reshaping the US government during his first month in office.

    But in doing so, he is testing numerous legal and constitutional boundaries, which Democrats and legal experts warn could undermine the checks and balances of American democracy. 

    Here's what's happened and where the US can go from here.

    But first, what is an executive order?

    It's essentially a statement about how a president wants the US federal government to be managed. 

    Most often, executive orders take the form of instructions given to federal agencies. 

    While they're legally binding, they are not legislation because they don't require approval from Congress. 

    An executive order can't contradict existing laws.

    Which laws has Trump tested?

    Let's take a look at some recent moves by the Trump administration, and which laws they may have violated.

    Birthright citizenship

    Declared the Constitution's 14th Amendment will no longer be interpreted as granting citizenship to people born on US soil to undocumented parents or visitors.

    The 14th Amendment of the Constitution

    Section 1 of the 14th Amendment says: "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."

    Since 1898, court precedents have supported the interpretation that those born in the US are entitled to the right of citizenship, regardless of the status of their parents.

    Two federal judges have blocked the order, describing it as "blatantly unconstitutional".

    Buyout offers

    Offered almost every federal employee the option to resign in exchange for eight months' pay and benefits. 

    Unions representing federal government employees have filed a lawsuit to block any buyouts

    They warned workers the offers were not trustworthy, despite assurances from the Trump administration. 

    The Anti-Deficiency Act 

    This law prohibits the federal government from spending more money than Congress has appropriated

    With the federal government's funding set to run out in mid-March, there are questions around whether the Trump administration has the authority to offer pay and benefits until October. 

    The Administrative Leave Act of 2016

    There are also limits on how federal employees are placed on leave

    Section 3 of the Administrative Leave Act prohibits agencies from placing federal employees on administrative leave for more than five consecutive days. 

    Federal grants freeze

    Ordered agencies to implement a blanket freeze on up to $3 trillion in domestic grants and government spending, pending a review to determine whether they are consistent with the president's policies. 

    US District Judge John McConnell issued a temporary restraining order to block the freeze in late January, after a challenge was issued by 22 states and the District of Columbia.  

    On February 10, Judge McConnell said the Trump administration had violated that court order, because some state agencies were still having difficulty accessing federal funds. 

    "The broad categorical and sweeping freeze of federal funds is, as the court found, likely unconstitutional and has caused and continues to cause irreparable harm to a vast portion of this country," he said at the time. 

    "These pauses in funding violate the plain text of the TRO."

    The Trump administration had told states it believed the order did not apply to certain environmental and infrastructure spending, and that some payments were delayed for "operational and administrative reasons". 

    A second challenge has also been brought by a coalition of non-profits. 

    The 1st Amendment of the Constitution

    Several executive orders issued to the above effect announce that federal funds should not be used to advance such ideologies as Marxism and "transgenderism". 

    It's alleged this contradicts the 1st Amendment, which guarantees Americans' freedom of expression and speech. 

    A challenge issued by 22 states and the District of Columbia argues: 

    "Because Memo M-25-13’s conditions burden core political speech andassociation rights, and expressly discriminates based on viewpoint, it is subject to strictscrutiny."

    The Administrative Procedure Act

    Section 10 of the Administration Procedure Act states it is unlawful for an agency to take actions which are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law". 

    The states' challenge of the order alleges it is "arbitrary and capricious in multiple respects" and particularly notes the "nationwide harm and disruption" such a freeze would cause. 

    Foreign aid freeze

    Required a temporary freeze on most foreign aid.

    Politico reported on February 10 that an advocacy group, Public Citizen, had filed a lawsuit seeking to halt the freeze. 

    The Congressional Budget and Impoundment Control Act

    The Impoundment Control Act prevents presidents from not spending money that has been appropriated by Congress.

    Under Title X, the president may request Congress rescind appropriated funds, but ultimately must abide by its decision.

    Federal prosecutors

    Sacked prosecutors involved in criminal cases brought against Mr Trump and January 6 rioters.

    Legal experts say the fired prosecutors could argue the department had ignored civil service protections afforded to federal employees. 

    It was not immediately known how many of the fired prosecutors intended to challenge the terminations. 

    The Civil Service Reform Act of 1978

    Civil servants have protections from unfair or unwarranted practices under the Civil Service Reform Act

    It includes the provisions against firing workers without good cause and entitles them to advance notice and an appeals process. 

    Inspectors general

    Fired 17 inspectors-general — officials charged with identifying and investigating fraud, waste, abuse and illegal activity within government agencies — without notice. 

    Eight inspectors-general sued the Trump administration on February 12, according to a court filing. 

    They asked the US District Court in Washington to declare they remained lawfully in their agencies. 

    "The purported firings violated unambiguous federal statutes — each enacted by bipartisan majorities in Congress and signed into law by the President — to protect inspectors general from precisely this sort of interference with the discharge of their critical, non-partisan oversight duties," the lawsuit said.

    The Inspector General Act of 1978

    Section 403(b) of Title 5 states a president may only remove inspectors-general after notifying Congress at least 30 days in advance, and by providing a substantive case-specific rationale. 

    Sensitive data access

    Granted Elon Musk's Department of Government Efficiency access to the Treasury Department's federal payment system.

    Two major federal employee unions have brought a lawsuit against the Trump Administration, claiming it breached the Privacy Act of 1974.

    In response, District Court Judge Paul Engelmayer temporary blocked the department's access, citing a risk that sensitive information could be improperly disclosed. 

    The Privacy Act of 1974

    The Privacy Act prohibits the unauthorised disclosure of personal data.

    Section 552a states that government agencies must safeguard the personal information of individuals, protecting against "any anticipated threats or hazards to their security or integrity".

    Internal Revenue Code

    While it's not known what information DOGE officials have been given access to, there are concerns Americans' tax return data has been made available. 

    Such access would likely be in breach of the Internal Revenue Code, which places strict restrictions around tax data. 

    Only senior executive officials with a direct need can access these materials, meaning even the president is barred. 

    Section 6103(a) states that individual and business tax returns are confidential and may only be shared with the taxpayer's consent. 

    TikTok ban

    Ordered the Justice Department not to enforce the TikTok ban passed by Congress for 75 days and to notify its owners that defying the law would not be a criminal defence.

    Article II of the Constitution

    Section 3 of Article II requires presidents to "take care that the laws be faithfully executed", meaning Mr Trump is required to ensure laws passed by Congress are enforced.

    USAID shutdown

    Shuttered the US Agency for International Development (USAID) and had the State Department absorb its functions.

    A US judge has issued a temporary "limited" order blocking the Trump administration from taking steps to dismantle the agency.

    The Foreign Assistance Act of 1998

    The Agency for International Development was created and structured by Congress in the Foreign Assistance Act.

    Because it was established by law, Congress has the final authority over whether to shut USAID down.

    It's important to note while in many cases, judges have issued temporary court orders to put a halt on recent moves, the Trump administration is yet to be found to have overstepped their legal powers. 

    It has, however, been accused of breaking a court order in the federal grants case, which could risk criminal contempt, and finding a loophole in an order over the foreign aid freeze

    Some politicians and legal academics have warned the flurry of executive orders facing challenge are the first stop on a path toward constitutional crisis for the US. 

    That concern was stoked with Judge John McConnell's assertion that the Trump administration had violated a court order to resume distribution of federal funds. 

    Michael Waldman, the president and chief executive of the Brennan Center for Justice, described the Trump administration's first weeks as an "anti-constitutional law-breaking spree".

    "If Trump refuses to follow court orders, especially from the Supreme Court, we will have tipped from chaos into dire crisis," he wrote on February 11

    Mr Trump's predecessor, Joe Biden, also warned of a threat to democracy during his farewell address in January. 

    "Today, an oligarchy is taking shape in America of extreme wealth, power and influence that literally threatens our entire democracy, our basic rights and freedoms, and a fair shot for everyone to get ahead,"  Mr Biden said in his farewell address.

    What has Trump said?

    Speaking with reporters in the Oval Office on February 11, Mr Trump said he would abide by court rulings and appeal those that go against him. 

    "We want to weed out the corruption. And it seems hard to believe that a judge could say, we don't want you to do that," he said.

    "So maybe we have to look at the judges."

    Through a social media post on Sunday, the president provided some further commentary on current allegations that he has broken several laws in recent weeks.

    The post featured a screenshot of a post on X, where conservative commentator Logan Hall responded to a headline about the Trump administration with a quote dubiously attributed to Napoleon Bonaparte: "He who saves his country violates no law." 

    Read at face value, Mr Trump's post on Truth Social appears to claim it does not matter if his actions are unlawful if his defence is "saving the country". 

    The White House has insisted "every action" taken by the president has been "completely lawful". 

    What happens if a president doesn't obey the courts?

    The US government has three branches: the executive (run by the president), the legislative (Congress) and the judiciary (the courts).

    Courts have a few levers they can pull to attempt to reign in a government ignoring orders. 

    They include holding parties in contempt, laying down stricter orders or sanctioning attorneys. 

    But some legal academics have argued these powers would be relatively toothless in responding to a recalcitrant executive branch. 

    The legislative branch can also step in and remove a president from office through the process of impeachment. 

    That's where the House of Representatives charges a federal official for alleged misconduct and the Senate tries them for guilt.

    If an official is convicted of charges, they are immediately removed from office. 

    While that's never happened to a president, three have come close: 

    • Andrew Johnson in 1868
    • Bill Clinton in 1998
    • Donald Trump in 2019 and 2021

    Each were impeached in the House and then acquitted on all charges in the Senate. 

    Fast forward to today, and as things stand, the chance of Mr Trump being removed from office is low. 

    For that to happen, the majority of the House of Representatives must vote in favour of impeachment and two-thirds of members present in the Senate must vote in favour of conviction. 

    With Republicans currently holding the majority in both the House and the Senate, many believe it unlikely an impeachment motion would get far. 

    What would that mean for the US government system?

    Dr Harry Melkonian, an honorary associate of the United Studies Centre, said the system did not have an answer for situations of conflict, such as if a president were to decide not to follow court orders and Congress didn't act. 

    "It relies upon everybody acting respectfully towards the other branches of government," he said. 

    "That's the risk of when you have a president who approaches things from the viewpoint of 'What can they do about it' — the situation starts to deteriorate." 

    But he said the US is not at the stage of a constitutional crisis right now, and it's likely the government's stability won't diminish to that degree under the Trump administration. 

    "The Supreme Court, since it doesn't have to hear anything it doesn't want to hear, goes out of its way not to hear things that will create a crisis," he said. 

    So what happens next?

    It may be four years until the next presidential election, but the Congress seating plan isn't set in stone until then.

    The Democratic Party will have the opportunity to claw some power back through upcoming by-elections (known as special elections in the US).

    They are held between general elections when vacancies need to be filled, usually because of resignations. 

    There are expected to be at least three special elections to the House of Representatives in 2025 for the following districts: 

    • Florida 1 on April 1
    • Florida 6 on April 1 
    • New York 21 on a date to be determined.

    Each of these seats are currently held by Republicans by a wide margin. 

    If Democrats manage to flip them, they will have successfully regained majority in the House, giving them the ability to knock down any bills brought by the Trump Administration. 

    It's set to be an uphill battle for the party, however — the Republicans who won the seats in November did so with robust buffers. 

     Who wonMarginReason for special election
    Florida District 1Matt Gaetz32Chose not to assume seat
    Florida District 6Michael Waltz33Resigned to become National Security Advisor
    New York District 21Elise Stefanik24Expected to resign upon confirmation as US ambassador to the UN

    Looking further afield, Americans will also head to the polls in 2026 for midterm elections, where all 435 seats in the House of Representatives and 35 Senate seats will be contested. 

    As time goes on, Dr Melkonian suggested the frantic pace of the Trump administration will slow. 

    "Normally, the party in power loses seats midterm, so the chances are greater rather than lesser that [Republicans] will lose the House majority. 

    "I think [Mr Trump] understands that this time, and I think that's one of the reasons he's racing through as much as he possibly can, because once he loses that congressional majority, it gets pretty hard to get things done."  

    On matters before the courts now, Dr Melkonian suggested it was most likely they would never reach the highest court. 

    "This is part of Donald Trump's way of doing things — 'I said I was going to do it, and I did it, and if the courts say I can't, well, I can't'," he said.

    "The public is aware of the US Supreme Court; it may be critical of it, but they hold it in very high esteem. I cannot imagine even Donald Trump openly defying the the court. 

    "At that point, you would see Congress, I think, take action." 

    But at this stage, nothing is certain until the US sees how far the president will go. 


    ABC




    © 2025 ABC Australian Broadcasting Corporation. All rights reserved

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