Roundtable #31: How Far is Too Far? The Legal Limits of Executive Power
Section I: Overreach at the Polls: Addressing the Constitutionality of Executive Order 14248
On March 25, 2025, President Trump issued Executive Order (EO) 14248, “Preserving and Protecting the Integrity of American Elections”, creating constitutional tension between federal authority and state control over election administration. The EO includes provisions to strengthen voter citizenship verification and exclude student and employee IDs from eligibility for voter registration. Trump framed the order as an effort to “enforce federal law and to protect the integrity of our election process.” Executive orders, directives constitutionally designed to be issued by the president, have emerged into the spotlight as a controversial piece of policy, especially with President Trump signing 225 executive orders in 2025, raising constitutional questions on the power of the executive. Specific to EO 14248, the Constitution’s Elections Clause, Article I, Section 4, Clause 1 sanctions state legislatures’ authority over the “time, place, and manner” of congressional elections but allows for Congress to make any other changes with the exception of the place of choosing senators. Trump’s Executive Order 14248 raises constitutional questions under the framework of the Elections Clause by attempting to nationalize elections and expand presidential power into areas reserved for state legislatures and Congress. With legal tensions over federal and state control on election administration, the order raises concerns of disenfranchising voters, the potential for federal overreach.
The constitutionality of executive orders has long been contested. Specifically, the potential enactment of EO 14248 should be assessed considering the limited role the federal government has in administering elections compared to the power state legislatures and Congress are provided under the Elections Clause. First, the Elections Clause in Article I, Section 4, and Clause 1 of the United States Constitution states that “Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Accordingly, the president is not explicitly mentioned and instead the power of election regulation is given to state legislatures and Congress. Therefore, an executive order that presently commands and regulates election procedures presents an exercise of power that the Constitution does not specifically grant the president or executive branch. The Constitution does not accord the president any form of independent jurisdiction over election regulation. Correspondingly, EO 14248 stands as an order that violates the Elections Clause by including a multitude of provisions granting President Trump power over United States election law, such as the authority to add a citizenship requirement, which poses a potential poll tax concern and violation of the Twenty-Fourth Amendment because it requires Americans to pay for and produce a passport and obtain naturalization papers. Furthermore, the EO includes the withholding of federal funding from states who fail to comply with the president’s orders, raising additional constitutional concerns regarding the autonomy of state election law. Notably, the EO gives the Department of Government Efficiency (DOGE) staff access to sensitive voter information for all fifty states, among many other requirements. This constitutional violation has further been reinforced by the legal system as seen when the League of Women Voters Education Fund filed against President Trump on April 1, 2025, arguing that the order was illegal beyond the president’s power under the United States Constitution and federal law. The court held that the power to regulate federal election processes through the Election Assistance Commission (EAC) rests with Congress, not the president, while states retain the authority to institute their own election procedures and voter qualifications. Significantly, the show your papers citizenship requirement of EO 14248 was blocked by federal courts six months later on October 31, 2025, highlighting active limits on Trump’s executive authority. As stated in the court’s opinion, “Holding that the President lacks the authority to direct the EAC to make specific, predetermined changes to the Federal Form is consistent with the proper limits on his supervisory authority.” The court’s reasoning is particularly notable, as it is consistent with the Constitution's Election procedure of granting authority to Congress and State while demonstrating that permitting presidential authority over the EAC would violate separation of powers.
Although supporters of EO 14248 argue that the order strengthens election security and creates clear national voting standards, legal tensions as demonstrated by the League of Women Voters Education Fund v. Trump highlights that this order exceeds presidential power and can lead to voter disenfranchisement. The full enforcement of this Executive Order has several democratic and constitutional implications by eroding the voting rights of millions of eligible American voters, especially those from marginalized communities. As exemplified in the case, the “public interest” was significantly weighed by the plaintiffs to emphasize the potential impact the EO has on access to the ballot, “[the] public interest . . . favors permitting as many qualified voters to vote as possible.” The numbers tell the story: 18 percent of all citizens over the age of 65, 16 percent of Latino voters, 25 percent of Black voters, and 15 percent of low-income Americans lack an acceptable photo ID due to financial resources, availability, document accessibility, and other barriers. Furthermore, documents such as birth certificates and Social Security cards would become unusable for women who have changed their names after getting married, adding even further barriers preventing millions of eligible voters from successfully having their voices heard at the polls. These barriers raise critical constitutional concerns under the Equal Protection Clause of the Fourteenth Amendment and Voting Rights Act of 1965 by creating a disparate impact on historically marginalized communities, consistent with the court’s concern of voter disenfranchisement and concern for the “public interest”. Additionally, requiring documentation raises critical questions surrounding a potential poll tax, especially since obtaining the physical materials requires spending money, a direct violation of the Twenty-Fourth Amendment which bans poll taxes.
On the other hand, the order has been justified as a necessary measure to protect the integrity of American elections. Taken from the official White House website, the administration claims the United States lags behind other nations in enforcing election protections and the EO will give voters elections they can trust, “securing our elections.” Legislation surrounding election law has continuously remained a hot topic of debate within the Supreme Court, such as the tension between federal and state over voter ID laws as exemplified in Crawford v. Marion County Election Board. Crawford (2008) upheld Indiana’s voter ID law but the reasoning was that the court applied a balancing test weighing the state’s interest in election integrity against the burden on voters, and found that the burden was not severe enough to outweigh the state’s interest. Additionally, in 2013, Shelby County v. Holder struck down the preclearance formula of the Voting Rights Act, a significant safeguard that would’ve addressed EO 14248. These legal precedents continuously shaping how American citizens have access to the ballot make the ongoing constitutional tensions regarding EO 14248 even more critical.
The conversations surrounding these constitutional tensions and questions are especially significant today. National debates on voter access and election security have continuously shaped election law, and EO 14248 specifically highlights constitutional concerns over granting presidential authority on election regulation and separation of powers. Although the principles of democratic participation are fundamental to our country’s founding, the ability to give all American citizens the freedom to fairly and freely participate in the political process of elections has long undergone development through legislation, from the Fifteenth and Nineteenth Amendments to the Voting Rights Act of 1965. Most recently, President Trump claimed voter fraud changed the outcome of the 2020 election while disenfranchised voters have raised concerns over strict photo ID laws that prevent them from voting, illustrating a clear national divide between election security and access. With the League of Women Voters Education Fund v. Trump still currently in litigation, our courts will continue to significantly shape constitutional presidential limits and election law. Beyond just political discussions, this Executive Order requires courts to balance a multitude of constitutional issues, such as state and federal interests, election integrity and voter disenfranchisement, as well as the fundamental right to vote, a long recognized constitutional right that must be protected. The resolution of this case will clarify to what extent executive power can play in federal election regulation without breaching the Elections Clause and constitutional protections.
By Chloe Lee
Edited by Victor Odom
Section II: The Blurry Red Line: The Precarious Relationship Between the DOJ and the White House
On February 11, Attorney General Pam Bondi provided testimony for the House Judiciary Committee investigating the Department of Justice’s (DOJ) handling of the files pertaining to Jeffrey Epstein. As she faced the series of questions on the subject, Bondi “offered few detailed answers, no admissions of fault” and instead consistently expressed,” fealty and admiration for a president.” Through her disposition, it was clear that Bondi’s approach to her office clashes against many of her predecessors’ goals as attorney general to maintain a clear separation between the agency’s agenda and that of the president. It is not unheard of for a president and their attorney general to have a close relationship, most notably President John F. Kennedy’s appointment of his younger brother Robert Kennedy, but even then it was seen as the crossing of a red line, and as highly “controversial.”
This raises significant questions regarding the legal boundaries that define this relationship and how they might affect the type of law that the DOJ decides to prosecute. Article II of the Constitution of the United States did not define this legal boundary, since both the Office of the Attorney General and the larger agency were created separately through later statutes, therefore, its nature is mostly built on norms passed down between administrations. Considering the ruling of United States v. Nixon (1974), where the Supreme Court left this legal subject untouched, the legal boundaries have failed to construct a system that effectively protects against malfeasance and corruption.
When analyzing this tension under a constitutional light, it is clear that there is a separation implied between the DOJ and the White House, especially when it comes to Executive Office interference in the DOJ agenda. This legal boundary is drawn from the separation of powers in Article II of the Constitution, specifically those prohibiting judicial and legislative branch interference in prosecutorial decisions. It is thus understood that these restrictions also apply to the White House, “where the executive branch must carry out its prosecutorial role without White House involvement in individual cases” just as “Congress must carry out its constitutional oversight role without allowing it to influence open criminal investigations.” Evidently, this separation exists strictly as a norm rather than an explicit matter of constitutional law.
The Watergate scandal of the 1970s was a significant probe into the legal boundary between the DOJ and the Executive office. Following President Nixon’s resignation from office, there was a series of congressional acts that attempted to restrict similar executive abuses of the Department of Justice. Most significant among these are the Hughes–Ryan Amendment, which demands transparency on CIA covert operations; and the Inspector General Act, which established the independent role tasked with auditing bureaucratic agencies. These reforms, along with policies adopted internally by the succeeding attorneys general, were looking to make the weaponization of the DOJ by the White House harder, forcing more transparency and accountability within processes.
The infamous culmination of the controversy, United States v. Nixon, created a stronger foundation for an established separation by plainly disregarding any possibility of absolute presidential immunity “from judicial process under all circumstances”; further expanding that this immunity is not established in “the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications.” However, this case dealt exclusively within the scope of subpoenas and left the authority of the justice department to indict a sitting president constitutionally unanswered, meaning that despite the case’s significance, the agency continued to heavily rely on inherited norms. Some scholars have suggested this was possibly done to avoid the controversy that would fall upon the functions of the executive branch if the president was allowed to be indicted in office.
Increasingly, it has become evident that the reforms undertaken in the post-Nixon era were insufficient in protecting the DOJ from encroachment of the White House. The continued overreliance on norms have given way for unitary executive theory to gain more traction, a branch of constitutional theory that believes “that the President of the United States possesses sole authority over the executive branch.” The most compelling example of a doctrinal shift in this matter is the ruling of Trump v. United States (2024) that established a presidential immunity for constitutional powers and presumptive immunity for all official acts. Although this ruling would still allow for DOJ prosecution for unofficial acts, it would severely limit the efforts that could be undertaken by the agency to investigate instances of presidential wrongdoing, which erodes the cornerstone of the agency’s independence. Although United States v. Nixon denied absolute privilege from a subpoena from misconduct of official duties, Trump v. United States defines the boundary in terms of the nature of the act, not the office they are holding. The president’s presumptive immunity can be challenged, but it presents a significant raising of the bar when prosecuting a case against the executive. This weakens any checks or leverages that the Justice Department gained as a result of the Nixon era reforms, severely limiting their independence from the White House as their ability to utilize any kind of official act as evidence in a prosecution.
There is a growing threat of diminishing the Department of Justice's ability to act independent from the president's wishes, which creates a threat both of weaponization and of passivity towards wrongdoing within executive administrations. The Department of Justice’s role in pursuing criminal cases with fairness and proportional necessity is crucial when rooting out governmental corruption and attempts to deceive the American public. Recent developments in the second Trump administration’s DOJ only further show how essential it is to adopt a strict and exhaustive set of ordinances that clearly outlines a separation for the Department of Justice, possibly as strict as that of the Federal Reserve, for example, creating a statutory independence from the White House in cases where this independence is relevant to the integrity of the case. Reforms along these lines could serve as a safeguard to the integrity of their mission despite the establishment of presidential immunity.
By Sarah Arrazola
Edited by Victor Odom
Section III: In the Name of National Security: Executive Surveillance and the Fourth Amendment in the Digital Age
At the center of the digital era is the growing power of executive surveillance authority, in the name of national security. Counteracting this expansion is the Fourth Amendment, which protects individuals against unreasonable searches and seizures as a constitutional limit on government investigative powers. The Supreme Court has been compelled to define how far the executive branch may go in monitoring citizens without violating these protections, a definition that has been hard to assert as surveillance technologies continue to evolve. Through its decisions in Katz v. United States (1967) and Carpenter v. United States (2018), the Court has attempted to delineate how far the executive branch may go in monitoring citizens without violating their granted right against unreasonable searches. However, the intervening decision in Smith v. Maryland (1979), which introduced the third-party doctrine, created a gap that enabled the expansion of executive monitoring. The progression from Katz to Carpenter reveals the Court’s growing recognition that executive surveillance must have constitutional limits, even as its own doctrine has at times enabled the expansion it later seeks to restrain.
The Supreme Court’s ruling in Katz v. United States marked a foundational attempt to limit executive surveillance power under the Fourth Amendment. In this case, federal agents placed an electronic listening device on a public phone booth, recording Charles Katz’s conversation. Rejecting the government’s argument that no physical trespass had occurred, the Court held that “the Fourth Amendment protects people, not places.” Because Katz reasonably relied on the privacy of his phone booth conversation, the government’s warrantless electronic surveillance violated that expectation. The Court emphasized that the Fourth Amendment requires “antecedent justification” before such surveillance can occur, making prior judicial authorization a constitutional prerequisite for executive monitoring. This reasoning both expanded privacy protections and imposed a clear limit on executive authority, reinforcing that technological advancements do not eliminate the need for constitutional safeguards. By recognizing that electronic surveillance could violate the Fourth Amendment without physical trespass, the Court established that the executive branch cannot obtain unlimited authority and bypass constitutional requirements by adopting technological advancements.
The Court complicated this framework a decade later in Smith v. Maryland by introducing what is now known as the third-party doctrine. By doing so, the Court allowed for a doctrinal workaround that expanded executive surveillance authority. When the Supreme Court ruled that the installation of a pen register to record dialed phone numbers from a suspect’s telephone did not constitute a search in 1979, the justices asserted that the defendant had voluntarily conveyed those numbers to the telephone company. This then set a precedent that individuals do not have a reasonable expectation of privacy in information shared with third parties. The broader implication of Smith was the removal of a significant category of information from Fourth Amendment protection. The executive branch was thus allowed to access certain types of data.
While Katz required judicial oversight for surveillance that intrudes on reasonable expectations of privacy, Smith enabled the government to sidestep that requirement by relying on the formal act of data sharing. As digital technologies continuously evolve and more personal information is stored by third-party companies, this doctrine provides the executive with a potent legal pathway to expand surveillance. What began as a limited rule in an analog landscape evolved into a broad justification for large-scale data collection, demonstrating how judicial doctrine can inadvertently facilitate executive overreach.
As the digital era grew, so did the power of executive surveillance. In Carpenter v. United States (2018), the Supreme Court attempted to neutralize the consequences of the third-party doctrine by confronting the constitutional implications of modern data collection. When the government began to acquire cell-site location information (CSLI) from wireless carriers and subsequently arrested suspects because of their data location, they did so under the third-party doctrine established in Smith. Notably, the government claimed that individuals voluntarily shared their location data with wireless providers and thus had no reasonable expectation of privacy in that information. The Court rejected this argument, underscoring two distinctions. First, it challenged the notion of voluntary exposure, reasoning that individuals do not elect to share CSLI as carrying a cell phone is an essential aspect of modern life. Second, the Court highlighted the qualitative difference between CSLI and the limited data in Smith, contrasting how CSLI provides a comprehensive and continuous record of a person’s movements. Chief Justice John Roberts, who wrote the majority opinion, noted that there was a reasonable expectation of privacy and that “tracking [a] person’s movements and location through extensive cell-site records is far more intrusive than the precedents might have anticipated.”
By illuminating these distinctions, the Court demonstrated that applying the third-party doctrine to modern technologies would grant the executive branch a level of surveillance power that exceeds constitutional limits. Carpenter, thus, represents an attempt to reassert judicial control over executive surveillance authority by requiring a warrant to access such data. However, this decision also reflects the limitations of judicial intervention, as the Court did not overturn the third-party doctrine entirely and left the executive branch with continued discretion in other areas of digital data collection.
The journey from Katz to Carpenter displays the evolving attempt to define constitutional limits on executive surveillance. While the Supreme Court ruled that electronic surveillance violated the Fourth Amendment in Katz and acknowledged the unprecedented scope of digital data collection in Carpenter, the development of the third-party doctrine allowed executive surveillance authority to expand dramatically, highlighting the ongoing tension between national security interests and constitutional limits. Emerging technologies, such as artificial intelligence and large-scale data aggregation, further expand the government’s ability to monitor individuals. As this continues, the question shifts from whether privacy can be protected to whether existing constitutional frameworks are sufficient in constraining executive power in an increasingly data-driven state.
By Anusha Sharma
Edited by Victor Odom
This piece was reviewed and finalized by Eve Bertrand, Qizhen (Kiara) Ba, and Jasmine Rocha.
Τhe views in these articles are those of the individual authors and not of the Columbia Undergraduate Law Review.