“Abuse of Executive Power” versus Simply Bad Policy (or Maladministration) and Why the Distinction Matters

Abstract

This chapter explores the distinction between “abuse of Executive and/or congressional power” versus “maladministration” and argues that in the democratic context the former cannot properly be collapsed as but a subset of the latter. It is contended that such abuse of power involves a violation of the public trust based on egregious violation(s) of the fundamental human rights of an individual or collective and is hence ultra vires. Selected US judicial rulings are examined that “call out” the executive under Donald Trump for abuse of power in the handling of undocumented minors in US immigration detention during the COVID-19 pandemic. Also discussed is the US Supreme Court decision in Plyler v. Doe, which placed the protection of the basic human rights of undocumented children within US jurisdiction as central to the analysis as to whether the Texas legislature had acted beyond its jurisdiction in denying the children’s right to access education.