Anne Richardson Oakes, Birmingham City University
As the 19th-century French political philosopher, Alexis de Tocqueville, memorably observed, Americans have a tendency to fight their political battles in court. Barely two months into his presidency, Donald Trump is demonstrating increasing frustration as trade unions, civil rights organisations and states attorneys general challenge the implementation of his policies with lawsuits alleging presidential overreach that undermines the constitutional separation of powers.
More than 130 lawsuits are now pending. As a result, federal courts have put on hold key policies of the Trump administration and Trump lawyers have lodged emergency petitions invoking Supreme Court intervention.
First to face court check was the federal funding freeze order. This was swiftly followed by court rulings against the birthright citizenship order. This controversial measure would withdraw citizenship for children born in the United States to undocumented or non-citizen parents who are in the country legally but temporarily.
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Another court ruling has overturned the Pentagon’s ban on transgender people enlisting in the US armed forces. Yet another has blocked the Department of Government Efficiency’s (Doge’s) access to treasury department records containing the personal financial details of millions of Americans.
This was blocked for the very fundamental grounds that this has not been authorised by Congress and is not within the scope of the presidential power. Whether Doge can even exist without Congressional authority is also in contention.
The president’s increasing anger with the courts erupted on March 18. The US president launched an astonishing personal attack on a US federal judge who ruled against the summary deportation of alleged members of the Venezuelan Tren de Aragua gang and ordered the administration to turn around the plane carrying them that had already taken off.
Trump’s call for Judge James Boasberg to be impeached prompted a rare intervention from Supreme Court chief justice John Roberts. Roberts condemned the impeachment call in a statement that did not name the president but was clearly intended as a rebuke and a reminder of the constitutional boundaries that guarantee the role of the judiciary as the equal third branch of government.
Unrepentant, Trump doubled down the next day on TruthSocial calling Judge Boasberg a “Radical Left Lunatic Judge” who wanted “to assume the role of president”. His charge was then echoed by White House press secretary Karoline Leavitt who accused the judiciary generally of attempting to paralyse the administration’s programme, usurp the power of the president and undermine the will of the American people.
Despite Judge Boasberg’s order, the plane carrying the Venezuelans did not turn back. The administration has denied wrongdoing and Judge Boasberg has yet to impose any penalty.
This was not the first occasion that the administration has appeared to openly defy court orders. The previous week Dr Raiza Alawieh, a Brown University professor with an American visa was deported despite an order from a federal judge in Boston requiring that the court be given advance notice before the government attempted to remove her.
All eyes on the Supreme Court
All these cases are likely to go to the US Supreme Court. As its name suggests, this is the highest level of the judiciary in the US. It has the final say on what the US constitution means and authorises. At issue will be the scope of the presidential power – and the outcome is uncertain.
It’s important to bear in mind that the court now has a six-to-three majority of conservative justices – three of whom were Trump nominees. We also need to be aware that this court, in a previous ruling, considerably extended the scope of presidential immunity to cover all official “core acts” so that, whatever the outcome, the president himself is unlikely to attract personal liability.
But we do know that the Supreme Court’s ruling on a constitutional issue is final – and that all government officials at federal and state level will be required to respect it. The fear now is that the administration may go ahead regardless in which case we will find ourselves in unknown constitutional territory.
To find parallels we could go back to the desegregation era of the middle of the 20th century and specifically to Little Rock in Arkansas where the then governor, Orval Faubus, called out the national guard to prevent the court-ordered desegregation of the local high school.
The ensuing crisis ended when the then president, Dwight D. Eisenhower, sent in federal troops to enforce the court order. The US Supreme Court unanimously declared that its interpretations of what the constitution required were the supreme law of the land, which bound the governor and the state legislature.
The chief justice of that era, Earl Warren, later regarded this ruling (Cooper v Aaron) as the most important of his time on the Supreme Court – more important even than the actual desegregation decision itself (Brown v Board of Education).
It is clear that the judicial branch depends upon the executive to put its orders into effect and demonstrate respect for the rule of law and the separation of powers. But we now see a president who demonstrates open hostility to judges whom he considers have opposed him. His administration has also begun to vindictively target with punitive blocking orders the big law firms who assisted in the prosecutions brought against him before he took office.
Does a constitutional crisis loom? How all this plays out remains to be seen.
Anne Richardson Oakes, Associate Professor and Director: Centre for American Legal Studies, Birmingham City University
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