What Trump's unconstitutional executive orders are really meant to do

After repeatedly claiming that he has “nothing to do with Project 2025,” Trump has signed warp speed executive orders to effectuate Project 2025.

A fever dream of the Christo-nationalist Heritage Foundation and other right-wing extremists, Project 2025 seeks to advance Trump’s authoritarian vision for America. At full tilt, it would enact tenets of Christianity into law (controlling and punitive tenets of the Old Testament, not the woke stuff about loving your neighbor), accelerate climate change, further marginalize immigrants and the poor, and replace the federal workforce with Trump loyalists.

Project 2025’s unifying theme is the expansion of executive authority, a GOP goal nearly 40 years in the pipes. Through fiat of executive order, Trump is reaching for an unprecedented expansion of his own power, and the Republican majority on the Supreme Court may very well assist.

Revenge terminations and impoundment

One of Trump’s first acts was to summarily fire Justice Department prosecutors who helped investigate Trump’s criminal attempts to overthrow the 2020 election. These prosecutors were not political hires from the Biden administration; they were career DOJ prosecutors who worked under presidents of both political parties. Their loyalty oath was to the Constitution, not the President.

Trump’s acting attorney general, James McHenry, made clear that the terminations were political.He wrote in his firing memo that, “Given your significant role in prosecuting the president, I do not believe that the leadership of the department can trust you to assist in implementing the president’s agenda faithfully.”

In Trump’s trademark Orwellian spin, his executive order weaponizing the DOJ was titled “Ending the Weaponization of the Federal Government.” The order reads like a campaign ad, and accuses the Biden administration of “unprecedented, third-world weaponization of prosecutorial power,” calling investigations into Trump’s J6-related criminality—not Trump’s criminality itself—“misconduct.”

In addition to illegally firing career DOJ prosecutors, Trump is also trying to strong-arm all 2.3 million federal employees into quitting, offering an alleged ‘buy out’ that would pay them to resign now and collect partial salaries through September. (Any federal employee reading this, beware, there’s a statutory limitation of $25,000 in effect for such federal employee ‘buyouts,’ far below the eight months of salary promised, suggesting Trump/Musk won’t honor the terms of their “offer.”)

Trump’s attempted purge comes on the heels of a gag order barring external communications from federal health employees at the National Institute of Health, and, in violation of the Impoundment Control Act of 1974, an order unilaterally grabbing the power of the purse from federal legislators by impounding funds they allocated for programs Trump doesn’t like.

Political firings of most federal employees are blatantly unconstitutional

The Trump administration has made clear that they terminated DOJ prosecutors and are trying to replace “deep state” employees due to their politics. Under current case law, however, public officials cannot condition their subordinates’ employment on their politics. The First Amendment prohibits an elected official from hiring those who support or affiliate with him and terminating employees who do not.

In 1976, in Elrod v. Burns, the Supreme Court held that a public employer inhibits an employee’s constitutionally protected belief and association where it terminates him for lack of political support. In 1980, the Supreme Court reaffirmed this rule in Branti v. Finkel, holding that public employers cannot condition employment on political affiliation because, “[i]f the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes.”

In light of these cases, courts evaluate 1^st A political retaliation claims under the “Elrod/Branti test,” which holds that the First Amendment protects public employees from termination based upon their political beliefs, affiliation, or non-affiliation unless their work “requires” political allegiance. To show that loyalty is substantively “required,” Trump would have to show that the government has a vital interest in employing only MAGA prosecutors. Trump’s personal desire to stay in office for life, an idea he has repeatedly floated, and his desire to use the presidency for profit and revenge are distinct from--and contrary to--the government’s vital interest.

Trump’s 1% victory was neither a landslide nor mandate

The legal necessity of showing that political firings somehow advance the government’s “vital interest” may be why Trump, Republicans and Fox News keep repeating that Trump won by a landslide, which has given him a “mandate.” Although the 1^st A doesn’t care how popular or hated Trump is, winning by one percent is laughably distinct from winning a mandate that suggests Trump’s political interests are synonymous with the government’s.

Anyone still reliant on facts should repeat the math with a bullhorn: Trump won 77 million votes compared to Harris’ 75 million votes; 49% of the vote compared to Harris’ 48%, a difference of 1%.More importantly, in terms of “mandate,” 90 million eligible voters didn’t vote at all, a number that exceeds the number of voters for either Trump or Harris.

In short, out of 245 million eligible US voters, nearly 70% did not vote for Trump. (75m Harris voters + 90m non-voters= 165 million, or 67% of 245 million eligible voters.) Only a math moron would continue to present this as a mandate.

Trump’s unconstitutional orders are meant to trigger judicial review

In addition to 1^st A protection afforded to all public employees, many federal statutes have specific built-in protections for agency workers, to stabilize the federal government and guard against the whims of politicization. The law creating the labor board, for example, requires defined cause to fire its members: “Any member of the board may be removed by the president, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”

Acts creating the Federal Reserve System, Postal Service, Federal Trade Commission, National Transporta­tion Safety Board, Federal Energy Regulatory Commission, Consumer Financial Protection Bureau and other agencies allow termination only “for cause” identified as inefficiency, neglect of duty, and malfeasance in office. Trump’s purge, in light of these statutory protections, is headed to the Supreme Court, where a Republican-appointed majority may strike down the protective statutes, based on its push in recent years to expand presidential authority. Whether it will also pervert nearly unanimous 1^st A jurisprudence on political terminations remains to be seen, but as Dobbs illustrated, conservative justices who support Project 2025 are unconstrained by precedent.

Current conservative justices take an expansive view of executive power, and may be anxious to invalidate congressional restrictions on the White House. Chief Justice Robert’s immunity decision, granting Trump broad immunity from criminal claims, held that Trump’s threat to fire the acting attorney general in 2020 could not even be discussed in court or admitted into evidence in a criminal case. After allowing Trump to commit crimes with impunity, influencing voters and thus serving as Trump’s literal get out of jail card, these Machiavellian jurists don’t seem inclined to stop him from building an empire that imposes their own conservative and religious values on the rest of us.

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Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, the Haake Take, is free.