The US Presidency: executive orders push legal bounds of authority

William Roberts, IBA US Correspondent

Arriving in Washington, DC, new US President Donald Trump immediately began pushing the legal boundaries of presidential authority. 

At his inauguration inside the US Capitol on 20 January, the President declared he would usher in a new ‘Golden Age’ for America. He promptly staged an executive signing ceremony before thousands of his supporters who’d gathered in a sports arena, delivering on a campaign promise of ‘shock and awe’. 

Trump has issued more than 65 executive orders and memoranda in his first two weeks in office. This wave of activity marked a return to his combative, chaotic governance style.  

Critics argue Trump is advancing an authoritarian style with his unilateral decisions. Attempts at severe spending and personnel cuts have sown confusion and alarm inside federal agencies. The White House has said, meanwhile, that there’s a need to ‘streamline our gargantuan government to better serve the needs of the American people.’  

However, several orders have almost immediately led to lawsuits, presaging a Supreme Court showdown over the limits of presidential authority. ‘Presidents are entitled to impose their priorities,’ says Michael L Novicoff, a Member of the IBA Litigation Committee Advisory Board. He advises separating politics from the law in assessing events in Washington. 

‘Giving instructions and setting priorities for the executive branch is what a president is empowered to do and indeed is one of the things he’s elected to do,’ says Novicoff, who’s a partner at law firm Pryor Cashman in Los Angeles. ‘Executive orders, however, cannot be used to direct executive branch employees to simply defy existing law.’  

One of the incoming President’s early executive actions was an attempt to revoke birthright citizenship for children born in the US. The 14th Amendment to the US Constitution enshrines citizenship to ‘all persons born or naturalised in the United States, and subject to the jurisdiction thereof.’ The President ‘simply telling the executive branch not to recognisre citizenship that is granted by the Constitution, or to apply an interpretation of the Constitution that the Supreme Court has rejected, would not appear to be an appropriate use of an executive order,’ Novicoff says. 

The White House argues that ‘the Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”’ 

Twenty-two states and the cities of Washington, DC, and San Francisco as well as immigrant rights groups immediately filed lawsuits to block Trump’s order. A federal judge temporarily blocked the order on 23 January. 

Much of Trump’s opening legal salvo is aimed directly at the US government’s role in the world. Trump issued an ‘America First’ foreign policy declaration and withdrew from the Paris Climate Agreement and the World Health Organisation. He paused almost all US foreign aid for 90 days, affecting about $68bn in programmes across 180 countries.  

‘In the short term, we’re going to see a lot of pain,’ says Mary Ellen O’Connell, a professor of law at Notre Dame Law School in Indiana. ‘There is so much confusion. The sudden cut of foreign aid is going to hurt a number of very important programmes. It’s really very disruptive.’ 

Foreign aid is to be re-evaluated for alignment to Trump’s agenda, said Secretary of State Marco Rubio, who questioned whether the spending of money in this way made America safer, stronger or more prosperous. 

How this matches the legislative intent of Congress is unclear. The funding has already been authorised under the Foreign Assistance Act 1961, which emphasises global interdependence and humanitarian ideals. 

One of Trump’s first orders related to ‘America First’ trade policy, setting the stage for future tariff increases. ‘For President Trump, tariffs are about negotiating leverage on non-trade matters like immigration or fentanyl or something that relates to our national security,’ says Raj Bhala, Special Projects Officer of the IBA International Trade and Customs Law Committee. Judging by the past, the president’s rhetoric will include attempts to intimidate trade partners, says Bhala, who’s the Brenneisen Distinguished Professor in the University of Kansas Law School. 

Eight of Trump’s executive orders signed on his first day together launched a sweeping plan to dramatically curtail immigration, deport millions and deploy the US military to secure the southwest border. ‘America’s sovereignty is under attack,’ Trump said, declaring a national emergency, which allows him to call up the military and order construction projects. ‘Our southern border is overrun by cartels, criminal gangs, known terrorists, human traffickers, smugglers, unvetted military-age males from foreign adversaries, and illicit narcotics that harm Americans.’  

He directed the Immigration and Customs Enforcement (ICE) agency to begin making arrests of undocumented persons, reportedly demanding officers meet a quota of 1,200 to 1,500 arrests a day. Trump also ordered a new detention camp to be constructed in Guantanamo Bay. 

The president gave his inaugural address surrounded by the heads of the richest, most powerful tech platforms in the world, including Elon Musk. Meta’s CEO Mark Zuckerberg, Amazon’s founder Jeff Bezos and Google CEO Sundar Pichai occupied coveted seats behind Trump inside the Capitol rotunda. Shou Zi Chew and Tim Cook, CEOs of TikTok and Apple respectively, were also there. Amazon, Apple, Google and Meta each reportedly gave $1m to Trump’s inaugural fund.

Musk, who pumped more than $200m into Trump’s election campaign, has been appointed to lead a new ‘Department of Government Efficiency’ (DOGE).

Indicative of the early chaos, an order by Trump’s Office of Management and Budget that froze all federal grants and loans was quickly rescinded after widespread confusion and a lawsuit. 

Kim Lane Scheppele, a professor of sociology and international affairs at Princeton University, says Trump’s ‘giant flurry of legal actions’ amount to an assault ‘on democratic and constitutional institutions’. Scheppele, who has studied autocracies in Russia and Hungary, says they appear ‘to be reshaping the administrative state […] contravening or subverting the apparent mandate that agencies have from their authorising statutes.’ 

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BRICS expansion into payment systems poses threat to dominance of US dollar

Chris Crowe

The recent expansion and shifting objectives of the BRICS bloc suggest an escalating rivalry between its members and Western liberal economies – and a potential threat to the status of the US dollar within international trade.

BRICS – originally comprising Brazil, Russia, India, China and South Africa, but expanded in 2024 to include Egypt, Ethiopia, Iran and the United Arab Emirates (UAE) – met for its 16th summit in Kazan, Russia, in October. The summit showed that Russian President Vladimir Putin is far from isolated, despite the West’s efforts in supporting Ukraine militarily and intensifying sanctions against Russia. 

The summit also looked to advance the BRICS Pay initiative, a direct challenge to the SWIFT international payments network. SWIFT is the global standard for bank transactions, which are largely in US dollars. 

BRICS – formed in response to the global muscle of the Group of Seven (G7) countries – now represents around 45 per cent of the world’s population and 35 per cent of global gross domestic product (GDP), based on purchasing power parity. The G7, meanwhile, only accounts for ten per cent of the global population and 30 per cent of GDP. This data suggests that the G7’s influence on global economic affairs could weaken. 

The BRICS bloc previously sought reform of multilateral financial institutions, particularly the International Monetary Fund, but its purpose has shifted. ‘BRICS once represented a reformist group seeking to participate in existing institutions, rather than creating new institutions or international organisations,’ says Carol Monteiro de Carvalho, Member of the IBA International Trade and Customs Law Committee Advisory Board.   

Now, with oil-producing states joining the bloc, BRICS has even more weight if it acts collectively and puts aside individual political and commercial interests – for example, the US remains China’s primary trading partner.  

BRICS itself is seeing increasing trade volumes, though this can be ascribed to the commercial and political trading power of China. While China is a major trading partner for Brazil, India, Russia and South Africa, the economic connections aren’t necessarily as strong among the other founding members. ‘Trade flows between Brazil and South Africa, as well as between Brazil and Russia, remain relatively small and focused on specific sectors, such as fertilisers,’ explains Monteiro de Carvalho, who’s also a partner at Rio de Janeiro-based Monteiro & Weiss Trade. 

BRICS Pay was a major focus at the Kazan conference. As proposed, the decentralised scheme would allow BRICS countries to trade with each other without converting to US dollars by utilising blockchain technology and tokens, effectively circumventing the SWIFT network. 

The exclusion of several Russian banks from SWIFT following the country’s invasion of Ukraine has fuelled the Kremlin’s ambitions to create an alternative financial system. BRICS Pay is promoted as a means of reducing costs, enhancing efficiency and potentially shielding countries from sanctions imposed by the West. 

Ramesh Vaidyanathan, former Co-Chair of the IBA Asia Pacific Regional Forum, believes that BRICS Pay could have a transformational impact on world trade. ‘It marks a significant step towards a multipolar global economy, reducing the dominance of the US dollar and creating a more balanced trade environment for developing nations,’ says Vaidyanathan, who’s Managing Partner at Mumbai-based firm BTG Advaya. ‘It could also spark increased competition between Western and Eastern economic models, with long-term geopolitical implications.’

Yet, in practice it may be tough for BRICS to de-dollarise and exchange dollar reserves for a currency that’s not as strong and stable. ‘In my mind, there are issues between those countries that make up the BRICS community,’ says Michael Diaz, Global Managing Partner of Diaz, Reus & Targ, who’s based in Miami. ‘I don’t believe that they will settle on a unified currency, because they all have national security concerns. They could move to digital bitcoin, but because of the individualised interests of those countries, I don’t see it as a risk to the US dollar.’ 

The extent to which BRICS members look to deepen intra-organisation relationships at the expense of those outside the bloc could result in a further retreat from the globalisation movement. ‘The very cohesion of BRICS ultimately favours a more fragmented international trade profile into competing blocs,’ says Monteiro de Carvalho. 

Global banks, accountants and law firms have primarily emerged from Western liberal economies, particularly the US and UK, but now find themselves with limited access to the largest economies within BRICS – Brazil, China, India and Russia.
 
Given the polarisation and competition between the G7 and BRICS, this could encourage more protectionist tendencies, but globalisation won’t be dismantled. While China is a central member of the BRICS, its globalised stance services its commercial interests. ‘Within BRICS, China acts as a globalising agent, with its initiatives primarily aimed at opening markets for its products and companies. In the global context, this stance contrasts with countries that have adopted more protectionist measures,’ says Monteiro de Carvalho. ‘It is also important for companies to understand that the trade policies of each BRICS country will not necessarily be dictated by the bloc at this time.’

Brazil will assume the presidency of BRICS in 2025 and is expected to push for greater cooperation between its members. Whether this will mean greater polarisation between BRICS states and Western liberal economies is unclear, but it’ll certainly heighten tensions. Any state that chooses to align itself with Iran and Russia – and perhaps to a lesser degree, China – has a greater prospect of facing scrutiny and potentially penalties from the US and its allies. 

Under the incoming Trump administration in the US, Diaz predicts an escalation of tariffs to protect the dollar, possibly alongside further sanctions. ‘We expect to see a spike in sanctions, compliance and white-collar criminal investigations directed at political leaders that the US perceives as bad actors,’ he says. 

It all feeds into the narrative of the G7 versus BRICS, though given the well-established trading relationships between members of both organisations, the situation is complicated. Vaidyanathan believes that the apparent unity within BRICS – and the bloc’s recent expansion – shouldn’t be ignored. ‘The BRICS group is making a concerted effort to coordinate their policies, which may eventually translate into a reduction in the dominance of the US dollar as the currency of choice for global trade and foreign exchange reserves, the use of SWIFT as a global trade platform and that of Western economies in technological leadership,’ he says.   
 

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