Finch Legal

On March 6, 2025, President Donald J. Trump issued an executive order addressing legal and business practices associated with the law firm Perkins Coie LLP. The order cites national security concerns, election integrity issues, and alleged discriminatory hiring practices as justification for increased federal scrutiny. Specifically, it directs federal agencies to review security clearances, government contracts, and employment policies related to Perkins Coie.

The President’s authority to issue executive orders is derived from Article II of the Constitution, which vests in him the power to execute the laws and direct executive agencies. However, this power is not without limits. The Constitution also establishes safeguards against overreach, ensuring that executive actions do not infringe upon due process, separation of powers, or legislative prohibitions like the Bill of Attainder Clause. While there is room for debate over whether some provisions of the order could be justified on national security grounds, existing legal precedent strongly suggests that the order, as written, could exceed the lawful bounds of executive authority.

1. The Constitution and Executive Orders: The Source and the Limits of Presidential Authority

The President’s executive power flows from Article II, which grants him the duty to faithfully execute the laws. However, executive orders must be grounded in existing statutory or constitutional authority to be legally enforceable.

A defining Supreme Court case on executive power is Youngstown Sheet & Tube Co. v. Sawyer (1952), often referred to as the Steel Seizure Case. During the Korean War, President Harry Truman issued an executive order seizing privately owned steel mills to prevent a strike that he believed would threaten national security. The Supreme Court ruled against Truman, determining that the President lacked the authority to take such unilateral action without congressional approval.

The case is particularly notable for Justice Robert Jackson’s concurring opinion, which outlined a three-tier framework for evaluating presidential power:

• Maximum Authority: When the President acts with explicit congressional authorization, his power is at its strongest.
• Zone of Uncertainty: When the President acts without clear congressional support or opposition, the scope of his power depends on the circumstances and constitutional interpretation.
• Minimum Authority: When the President acts contrary to congressional intent, his power is at its weakest and must be carefully scrutinized.

Application to the March 6, 2025, Executive Order

The executive order targeting Perkins Coie LLP presents a serious separation of powers issue. Unlike cases where Congress has explicitly granted national security or contracting authority, this order appears to operate without direct statutory backing. Courts evaluating the order could find that it falls under Category 3 (Minimum Authority) because it contradicts existing federal laws governing government contracts, employment decisions, and security clearance processes.

Supporters of the order argue that it reflects the President’s constitutional duty to safeguard national security and ensure ethical government contracting. However, Youngstown makes clear that the President cannot unilaterally impose penalties on private actors without congressional authorization. Given that no statute explicitly grants the President authority to bar specific law firms from federal work or to revoke security clearances as a punitive measure, the legal justification for this executive order appears weak.

2. The Bill of Attainder Clause: The President’s Authority and Its Limits

The Bill of Attainder Clause (Article I, Section 9, Clause 3) prohibits Congress from passing laws that impose punishment on individuals or entities without a judicial trial. This constitutional safeguard was designed to ensure that penalties are imposed only through a fair legal process rather than through legislative decree.

Although the Bill of Attainder Clause applies directly to Congress, there is no Supreme Court case that explicitly holds that the same restriction applies to the executive branch. However, the Court has suggested that executive actions imposing punishment without due process could raise similar concerns.

For example, in United States v. Lovett (1946), the Court struck down a congressional law that prohibited specific individuals from government employment without judicial proceedings. This case reaffirmed that targeted penalties imposed through legislative action violate constitutional protections against punishment without trial. While Lovett was strictly about congressional action, it raises the question of whether an executive order that functions similarly—by punishing a private entity without judicial review—could face constitutional challenges under similar reasoning.

The closest case related to executive power is Greene v. McElroy (1959), where the Supreme Court held that the executive branch cannot impose security clearance revocations that function as punishment without explicit congressional authorization. While this case did not address the Bill of Attainder Clause directly, it supports the broader principle that the executive cannot impose punitive measures arbitrarily.

How This Applies to the Executive Order

The executive order explicitly names Perkins Coie LLP, restricts government contracts and security clearances, and does so without any judicial determination of wrongdoing. This strongly resembles the type of targeted punishment that the Supreme Court has repeatedly struck down as unconstitutional when enacted by Congress.

While the executive branch has the authority to enforce laws and regulate security clearances, the manner in which it does so must comply with constitutional protections against arbitrary punishment. Courts would likely evaluate whether the executive order functions in a way that mirrors legislative punishment, even if the Bill of Attainder Clause does not apply directly.

The government does have the authority to deny contracts based on legitimate, neutral criteria, such as financial solvency or national security risks. However, this executive order targets a specific entity for past conduct and imposes sweeping penalties without due process, which could lead to a court challenge under similar principles to those applied in Lovett and Greene.

While national security concerns can sometimes justify stringent government action, the Supreme Court has made clear that constitutional protections cannot be set aside simply because the executive branch claims national security interests (Greene v. McElroy, 1959). Given these precedents, it is highly likely that a court would find this executive order constitutionally suspect, even if the Bill of Attainder Clause does not apply directly.

3. National Security Justifications and the Limits of Executive Power

The President’s authority over national security matters is strongest when derived from statutory authorization by Congress, but the Supreme Court has repeatedly affirmed that even national security concerns do not override fundamental constitutional protections.

The executive order directs agencies to suspend security clearances for Perkins Coie employees. The President, as Commander-in-Chief (Article II, Section 2), has broad authority over classified information (Department of the Navy v. Egan, 1988). However, this authority is not absolute—Egan does not permit the President to revoke clearances as a form of punishment.

Additionally, contracting restrictions raise due process concerns. Under federal procurement laws (FAR Subpart 9.4), contractors must be given notice and an opportunity to respond before being blacklisted. Courts have ruled that the executive branch cannot unilaterally bar entities from contracts without proper procedures (Greene v. McElroy, 1959).

Conclusion: The President’s Authority Is Strong, but Not Unlimited

While the President holds significant constitutional power to act on national security and government contracting, that authority must be exercised within constitutional boundaries. Courts have clearly ruled that executive action must be backed by clear statutory authority, respect due process, and avoid arbitrary punishment.

If challenged, the courts could find that this executive order imposes penalties in a manner akin to legislative punishment and exceeds the lawful limits of executive power. This case serves as an important moment to reaffirm the principles of limited government, separation of powers, and due process—ensuring that executive authority remains strong but does not become