In the not-too-distant past, the federal government consisted of three reasonably functional branches. Each conducted its business in accordance with established norms and was composed of individuals who, for the most part, respected the rule of law and took seriously their oath of office. We seem to have reached the point, at least for now, when only one branch still functions as intended.
The legislative branch is in near-total meltdown. Congress, supposedly the primary source of federal policymaking, has abdicated most of its legislative authority to the executive branch and is barely able to accomplish its most basic task of appropriating funds to keep the government open. It has all but abandoned oversight other than political grandstanding. Both the House and Senate have devolved into hyper-partisan, polarized bodies whose members prioritize political survival over public service.
The executive branch is careening off the rails under President Trump, who clearly has no respect for democratic norms or the rule of law. Indeed, he delights in flaunting his contempt for our democratic institutions. He stocked his second term administration with yes-people whose only allegiance is to him. In just a few months, Trump and his surrogates (most notably Elon Musk) and subordinates have taken a wrecking ball to the federal government. Their actions create widespread chaos within and outside of government. Many raise serious legal issues.
Trump has no guardrails within the executive branch. It’s obvious that Congress won’t check his power. The Republican majorities in both houses of Congress apparently view their principal role as serving Trump rather than operating as an independent, co-equal branch of government. Democrats are powerless in Congress and too consumed by internal conflict to even produce coherent opposition messaging.
This leaves the judicial branch as the only serious constraint on Trump’s excesses. How effectively the courts counter him when he oversteps his authority will be a key test for our democracy.
Unsurprisingly, Trump’s blitzkrieg of legally controversial actions has already generated well over 100 lawsuits and counting.[1]See here, here, and here. While most cases are in their early stages, there’s no indication so far that the courts are reluctant to rule against Trump. Indeed, the initial results provide two truly remarkable takeaways: Trump is on the losing end of over 80 percent of the preliminary rulings, and the adverse rulings are coming in almost equal proportion from judges across the ideological spectrum—84% liberal, 86% centrist, and 82% conservative.
Still, many on the left fear–and many on the MAGA right hope–that once cases reach the Supreme Court, its 6-3 majority of conservative Republican appointees will fall into line behind Trump. The Trump Administration apparently shares this hope since it has staked out many very aggressive legal positions.
There is no objective reason to think that Supreme Court justices are biased toward Trump or that they would be susceptible to the intimidation and extortion he employs so successfully in so many contexts. The conservative majority is ideologically disposed toward a broad view of presidential authority.[2]This probably explains their highly questionable decision last year on presidential immunity from criminal prosecution. They may therefore be receptive to several cases challenging statutory restraints on the president’s authority to remove certain executive branch officials based on the so-called “unitary executive theory.” Trump’s challenges to the controversial practice of nationwide injunctions may also resonate with the Court.
Apart from these possibilities, however, it’s doubtful that Trump will fare better at the Supreme Court than he has at lower levels. The most obvious reason is that many of his challenged actions are clearly illegal. His executive order attempting to redefine birthright citizenship is patently unconstitutional. It’s hard to imagine any self-respecting textualist/originalist justice upholding it. Indeed, there’s no good reason for the Court to take this case for review on the merits.[3]Since the lower courts have uniformly ruled against Trump, there is no conflict to resolve. One possible complicating factor is that the Trump Administration is attempting to use this case as a … Continue reading Trump’s invocation of the Alien Enemies Act to deport alleged members of the Venezuelan gang Tren de Aragua with no due process looks like another loser for him if it reaches the Supreme Court on the merits. The Act seems inapplicable on its face.
If the courts function as they should, how will Trump respond?
Trump and his minions are in full demagogue mode in the face of preliminary adverse court decisions. Trump ranted that the judge who initially ruled against him in the Tren de Aragua case was a “Radical Left Lunatic” who, along with other judges ruling against him, should be impeached.[4]This drew a rebuke from Chief Justice Roberts. Musk made political donations to House members who echoed this nonsense and introduced impeachment resolutions. Attorney General Bondi accused the district judge of “support[ing] Tren de Aragua terrorists over the safety of Americans.”
While it’s easy to grow numb to Trump’s constant outrages, it’s still shocking that a president of the United States and an attorney general could engage in such absurd and disgusting behavior. It’s also distressing, if not surprising, that no prominent congressional Republican had the courage or integrity to condemn the ridiculous impeachment calls. Worse yet, House Speaker Johnson made veiled threats of his own against the judges.
In addition to the extreme rhetoric, the Trump Administration is clearly playing fast and loose with the courts by stonewalling them and otherwise trying to keep them at bay. They may have violated court orders in the process. So far, however, they have stopped short of avowed defiance. Trump himself insists that he will not defy the courts.
It remains to be seen whether this changes when final judicial decisions go against Trump, as seems inevitable. However, openly defying the courts may be a bridge too far even for Trump. Trump is a con man and a bully; he operates by bluffs and intimidation, staking out extreme positions and pushing them as far as he can. But like any bully, he backs off in the face of stiff opposition.
There are reasons to believe he would encounter such resistance here. It has been accepted for centuries that, as Chief Justice John Marshall famously observed in Marbury v. Madison: “It is emphatically the province and duty of the Judicial Department to say what the law is.” Even prominent voices on the right reject the notion that Trump could disobey the courts.[5]See here, here, and here. There would likely be a broad, bipartisan condemnation of defiance of the courts from academics, pundits, and most others outside MAGA world.
Furthermore, public opinion across party lines strongly opposes defiance of the courts. Overall, 84 percent of respondents (including 79 percent of Republicans) say Trump should abide by judicial decisions. Notably, most Americans (57 percent) already think Trump is exceeding his authority. Refusal to comply with final judicial decisions might even be the last straw for some otherwise spineless Republican politicians.
For now, all we can do is rally around the judiciary and hope that the rule of law prevails. The courts have come under cynical, spurious attack recently as both the left and the right sought to politicize them and undermine their credibility.[6]See, e.g., here, here, and here. Now is the time to rise above partisanship to accord the federal judiciary the respect it deserves and that it will surely need in the months and years to come.
Footnotes
↑1 | See here, here, and here. |
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↑2 | This probably explains their highly questionable decision last year on presidential immunity from criminal prosecution. |
↑3 | Since the lower courts have uniformly ruled against Trump, there is no conflict to resolve. One possible complicating factor is that the Trump Administration is attempting to use this case as a vehicle to challenge nationwide injunctions. |
↑4 | This drew a rebuke from Chief Justice Roberts. |
↑5 | See here, here, and here. |
↑6 | See, e.g., here, here, and here. |