The Imperious Presidency: Brazen Power Plays and Executive Overreach

The Trump Administration has been prone to brazen power plays. These actions have three basic characteristics: they are dramatic deviations from conventional governance, generating headlines and online clicks; their legal (and sometimes factual) foundations are tenuous; and they are potentially effective even if they are ultimately held lawful. This Essay analyzes this phenomenon. It argues that such power plays can be a rational strategy for a president under certain circumstances.

Power plays can help dominate the news flow and energize the political base. They can also cause behavior shifts in their targets, even when litigation would be likely to overturn them. One downside, however, is that their brazenness may court legal defeats that would be less likely if an administration used more nuanced measures to pursue policy goals. Early litigation against the current Trump Administration provides strong support for the existence of this increased litigation risk and shows why brazen measures may be more legally vulnerable.