The charge that a president is violating the Constitution can mean—at least—two different things. A president could be exercising a power he does not actually hold. Or he might be exercising a power he legitimately holds in a manner that itself violates the Constitution. 

In a written version of remarks delivered at the symposium “The Constitutional Rights of Lawyers and Law Firms,” University of Chicago Law Professor William Baude suggests that many of the most significant constitutional questions raised by the second Trump administration fall within the latter category. He contrasts the president’s assertion of nonexistent powers—citing the birthright citizenship executive order and Trump’s unilateral suspension of the TikTok ban as examples—with abuses of “real executive powers”: exercises of authority, constitutional or statutory, that the president is legitimately empowered to wield. 

In keeping with the symposium topic, Baude uses the president’s law firm executive orders as an example of the second category. Those orders alleged that specific firms engaged in racial discrimination and referenced the targeted firms’ associations with people and issues objectionable to Trump. The orders directed consequences for these practices and affiliations, including security clearance suspensions, government contract terminations, and limits on access to federal buildings.

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