Trump’s Death Penalty Order Is a Message to the Supreme Court
The president is directing the Justice Department to overrule the Supreme Court in cases where the justices have found capital punishment is unconstitutional.

January 23, 2025 at 6:30 AM EST
By Barbara L McQuade
Barbara McQuade is a professor at the University of Michigan Law school, a former US attorney and author of Attack from Within: How Disinformation Is Sabotaging America.


Back with a vengeance. Photographer: Anna Moneymaker/Getty Images

The death penalty is back in the new Trump administration, and its use will be more aggressive than ever. ... Among the flurry of executive orders President Donald Trump issued Monday was one called “Restoring the Death Penalty and Protecting Public Safety.” Regardless of your opinion of capital punishment, parts of this order raise concern about this administration’s view of the rule of law.

Former President Joe Biden and his Justice Department issued a moratorium on federal executions shortly after he became president in 2021. Last month, in one of his final acts before leaving office, Biden commuted the sentences of 37 of the 40 people on federal death row, converting their punishments to life imprisonment without possibility of parole.

Trump’s order makes clear that he supports vigorous enforcement of the death penalty, calling it “the ultimate deterrent and only proper punishment for the vilest crimes.” Only certain serious crimes carry the federal death penalty, and the order directs the attorney general to “pursue the death penalty for all crimes of a severity demanding its use.” Certainly, some Americans will disagree with this view, but as chief executive, Trump, whose administration carried out 13 executions during his first term, gets to make this call.

But two sections of the order give me pause. First, the order contains a section entitled: “Seeking The Overruling of Supreme Court Precedents That Hinder Capital Punishment.” The section states, “The Attorney General shall take all appropriate action to seek the overruling of Supreme Court precedents that limit the authority of State and Federal governments to impose capital punishment.” In other words, Trump is directing the Justice Department to overrule the Supreme Court in cases where the court has determined the death penalty violates the Eighth Amendment’s prohibition on “cruel and unusual punishment.” ... The Supreme Court has found the death penalty is unconstitutional in cases for crimes other than homicide or where the defendant is under 18, mentally disabled, or legally insane. Trump’s executive order seems to suggest that prosecutors should seek the death penalty in such cases anyway, even for defendants who cannot appreciate the seriousness of their crimes.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Barbara L McQuade Barbara McQuade is a professor at the University of Michigan Law school, a former US attorney and author of Attack from Within: How Disinformation Is Sabotaging America.
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