The US judiciary is facing unprecedented pressure as President Trump asserts executive dominance. Global Insight examines the extent to which America’s courts are continuing to act as a bulwark of democracy.

When President Donald Trump invoked a wartime law from the 1700s to justify the deportation of migrants to a Central American prison, his legal team at the Justice Department anticipated federal judges might push back.

The Alien Enemies Act 1798 empowers the US president to summarily deport non-citizens from enemy nations during an ‘invasion’ or ‘predatory incursion’. Invoking it now to authorise President Trump’s mass deportation agenda was a novel expansion of executive authority and his lawyers knew it.

Emil Bove, one of the president’s top lawyers, called a high-level meeting at the Department of Justice. The administration was preparing to send three planes containing migrants to El Salvador over the coming weekend, but civil rights groups were poised to seek a restraining order.

Those planes needed to take off, no matter what, Bove told the government lawyers, and the Justice Department would need to consider ignoring any court orders blocking the flights, according to an internal account later submitted to Congress.

Testifying under oath to a US Senate committee in June, Bove didn’t recall telling government lawyers to disregard any court orders. Separately, a Justice Department spokesman denied the internal account. But emails and phone records turned over to investigators tell a different story.

‘There was a mandate from above [to say] “we’re gonna get those planes off the ground. If that means saying [ignoring] the courts, that’s what we’re gonna do”. And that’s different. That’s radical. That’s not how the Department of Justice is supposed to work,’ says Dana Gold, Senior Director of Advocacy & Strategy at the Government Accountability Project in Washington, DC, which is representing the man who provided the aforementioned internal account, former Justice Department official Erez Reuveni.

Reuveni was the acting Deputy Director of the Office of Immigration Litigation. He was dismissed by the Justice Department in April after admitting truthfully before a judge that a Salvadoran, Kilmar Abrego Garcia, had been wrongfully deported to El Salvador. US Attorney General Pamela Bondi, the top law enforcement official in Trump’s government, faulted Reuveni for failing to ‘zealously advocate’ the administration’s position and refusing a ‘directive’ that Reuveni says in his report would have misled the court.

‘Lawyers are a regulated profession,’ Gold tells Global Insight. ‘The Department of Justice is inherently the bastion where the rules of professional conduct play a meta role because they are supposed to be serving justice.’ Gold adds that ‘if the Department of Justice is willing to bend, to basically break its own rules of professional conduct, it’s a red line being crossed.’

‘What President Trump has done, perhaps more than other presidents, has been to not only bring the test cases and force the courts to deal with these issues, but to do it in a shock and awe strategy, which puts additional stress on the courts,’ says Steven Richman, Chair of the IBA Bar Issues Commission, who speaks in a personal capacity. ‘Test cases are one thing, but as in any litigation involving parties and lawyers on both sides, the facts and positions taken must satisfy rules of professional ethics in terms of not being frivolous and meet the standards of [Federal Rule of Criminal Procedure] 11 in federal court.’

‘There have been some commentators saying it may get to the point where President Trump just has to assert executive authority and ignore the courts. This has the potential to undo two centuries of precedent relating to judicial review under Marbury v Madison. To say that it’s still an open question as to whether or not the executive can simply defy the courts would severely challenge respect for the institutions,’ Richman says.

The Trump administration’s rendition of 261 Venezuelans and Salvadoreans to El Salvador has emerged as one of a growing number of cases in which the president is pushing the boundaries of executive authority under US law. It’s also an example of how trial judges – more often than not – have ruled against Trump’s legal teams and how the US Supreme Court has avoided a major clash with the president. ‘It’s not unreasonable to assume that the Supreme Court was well aware of and concerned about how closely that case may have brought the country to a constitutional crisis,’ says Michael Novicoff, a Member of the IBA Litigation Committee Advisory Board.

While confrontation has largely been avoided, in April the Supreme Court unanimously found that the Trump administration’s deportation of Kilmar Abrego Garcia to El Salvador, despite a court order prohibiting his removal, was illegal and a violation of due process. The Court ordered the administration to ‘facilitate’ his return to the US.

Abrego Garcia arrived back in June but now faces charges of conspiracy and illegally transporting migrants, which he denies. US District Judge Paula Xinis in Maryland has expressed concern that Abrego Garcia could be deported again almost immediately if released from pretrial detention in Tennessee. During a hearing on 11 July Judge Xinis indicated that she may require 72 hours’ notice to Abrego Garcia’s legal team before any removal and is considering ordering his return to Maryland while proceedings continue.

The ‘formidable check’

Asserting an aggressive view of his executive authority in his second term as president, Trump has issued dozens of orders and proclamations that push both US legal boundaries and political norms. Many of these have been met with lawsuits. And US district court judges, who are the first to hear and decide federal cases, have been ruling against the administration at a startling rate. More than 94 per cent of federal district court rulings in May went against the administration, according to data from Adam Bonica, an associate professor of political science at Stanford University.

Many commentators see the injunctions as a natural consequence of the number, pace and scope of President Trump’s executive actions, which have been unprecedented. As of mid-July, he had issued more than 280 orders, proclamations and memoranda in his first six months, more than any other president.

The collision between the Trump administration and US district judges has now culminated in an emergency case before the Supreme Court called Trump v CASA. The case related to President Trump’s order – issued on his first day in office – prohibiting US citizenship for children born in the country to undocumented parents.

Trump versus CASA

Birthright citizenship has been guaranteed in the US Constitution by the 14th Amendment since 1868. An estimated 255,000 babies are born to undocumented parents in the US annually, according to the non-partisan Migration Policy Institute.

Four US judges in Massachusetts, Maryland, New Hampshire and Washington State quickly issued nationwide injunctions against President Trump’s executive order. Appeals courts declined to lift those injunctions. Trump’s birthright citizenship order ‘may be the most obviously unconstitutional thing a president has done in modern times,’ says Peter Shane, a distinguished scholar in residence and adjunct professor of law at New York University Law.

Trump administration lawyers argued the president’s broad powers over immigration policy allow him to construe narrowly the phrase ‘subject to the jurisdiction thereof’ within the 14th Amendment in order to exclude children born to undocumented or temporary non-citizen parents. They also claimed prior Supreme Court rulings left open the possibility of a more restrictive interpretation.

When the Trump administration appealed to the Supreme Court however, it didn’t do so on the grounds that the birthright citizenship order is constitutional, but on the argument that the lower court judges had probably overstepped their congressionally delegated authority by issuing nationwide injunctions. ‘This was all a setup so that the administration could challenge national injunctions, because they were worried that district court judges who disagree with them would have too much impact. That’s why they ran up on the emergency appeal, just on that issue,’ Levenson says.

In an opinion written by Justice Amy Coney Barrett, the Supreme Court narrowed the nationwide injunctions issued by the lower courts to apply only to named plaintiffs. President Trump received the Court’s ruling as if his order on birthright citizenship had been legitimated, although it was not. ‘The Supreme Court has delivered a monumental victory for the Constitution, the separation of powers and the rule of law in striking down the excessive use of nationwide injunctions to interfere with the normal function of the executive branch,’ he said at a White House press conference.

Importantly, Barrett’s opinion left open the ability for plaintiffs to file class action lawsuits. Within hours of the ruling, immigrant advocacy CASA and the rights group American Civil Liberties Union filed class actions. Those will take longer to play out in the courts but will probably land before the Supreme Court, forcing it to rule on the constitutionality of President Trump’s attempt to withhold citizenship. In the meantime, though, tens of thousands of children may be denied American citizenship.

Further, lawyers say, the Court’s ruling gives the Justice Department a lever to challenge some 40 other nationwide injunctions still outstanding against President Trump’s policy actions. These include blocks on tougher immigration policies, cuts to foreign assistance spending and diversity programmes, terminations of government employee jobs and changes to state election processes.

New court skirmishes are arising almost daily. Even after Barrett’s opinion in Trump v CASA, lower courts have continued to rule against President Trump’s policies. District judges blocked the president’s ban on asylum claims at the US southwest border and his removal of temporary protections for Haitian migrants.

The ‘shadow docket’

Caught between district court judges and the Trump presidency, the Supreme Court justices seem eager ‘to avoid, for as long as possible, some kind of direct confrontation between the judicial and executive branches,’ says Novicoff, who’s a partner at law firm Pryor Cashman in Los Angeles. As a result, ‘the Court appears to be trying to decide as many issues as possible on grounds of civil procedure and not on the merits,’ Novicoff adds. This, he says, is probably ‘especially true of cases which reach it through the “shadow docket”, when the Court is asked to make emergency rulings without the benefit of a complete trial record and without the extensive briefing or oral argument that it receives in traditional appeals.’

Since President Trump’s return to office in January, the US Supreme Court has granted emergency requests from his administration to lift or stay 66 lower court injunctions, according to Bonica. That unusually high volume has reignited debate over the Court’s use of its emergency or so-called ‘shadow’ docket. Critics say these opaque rulings set ‘interim’ legal conditions that carry the weight of finality even as the merits of the underlying complaint are still being fought out in court. ‘That’s been a big, big problem,’ says Levenson. ‘What it has done is give a green light to the administration to run straight to the Supreme Court whenever they’re upset or disagree with a district court judge. It’s allowed the administration to pretty much control the Supreme Court’s docket.’

Supreme Court Justice Sonia Sotomayor observed ‘the administration has the Supreme Court on speed dial’, after conservative justices stayed a lower court’s order preventing deportation of a group of migrants to war-torn South Sudan.

Shadow docket judgments are generally rendered without oral argument or significant briefing and handed down with little or no explanation. The practical effect of most of the Court’s rulings in these emergency cases has been to largely allow President Trump to proceed with controversial executive actions over the objections of lower courts.

The Supreme Court has repeatedly intervened against lower courts on an emergency basis to allow the president to advance his mass deportation agenda. Contravening district judges, the Court has allowed President Trump to proceed with large-scale dismissals of federal government employees and paused a lower court order requiring reinstatement of 16,000 fired workers. It has prevented public inquiries into the Department of Government Efficiency (DOGE), which Elon Musk helped set up, and allowed the body’s staff to access sensitive computer systems at the Social Security Administration.

‘President Trump has a very broad belief about his power. And he has looked for opportunity,’ says Michael Showalter, Membership Officer of the IBA Environment, Health and Safety Law Committee. ‘It looks like the Supreme Court is using abbreviated briefing on the shadow docket to pick its favourite cases and pick its favourite causes and let things go at a different pace.’ At one point in the Supreme Court’s most recent term, there were two or three rulings on the regular docket that were six-three conservative-liberal split, and nine on the shadow docket at the same time with such a division between the judges, he explains. ‘That’s a very difficult thing to see,’ Showalter adds.

In one particularly notable shadow ruling, the Court appears prepared to reverse 90 years of US jurisprudence by allowing President Trump to fire – technically, temporarily – members of the National Labor Relations Board and the Merit Systems Protection Board without cause. Without ruling on the merits, the justices are signalling a major curtailment of the legislative authority of Congress to establish independent agencies, designed to function without political interference.

Among its other emergency rulings, the Court reinstated a ban issued by President Trump on transgender individuals serving in the military. And it allowed Trump to block millions of dollars in education grants aimed at reducing teacher shortages because the grants included language on diversity, equity and inclusion. ‘The Court in a lot of these close cases looks like an awfully political body, and that’s not where it’s at its strongest. It’s not a great look,’ says Showalter, who’s also a partner at law firm ArentFox Schiff in Chicago.

The six conservative justices on the Supreme Court are led by Chief Justice John Roberts. He has previously been seen as a conservative institutionalist committed to a formal separation of powers between three co-equal branches of government. He appears to be presiding now over a six-to-three majority that’s enabling a ‘unitary executive’ in which the president runs the executive branch with little or no controls by Congress or even the judiciary.

The Supreme Court’s latest opinions are ‘proto authoritarian’, Shane says. ‘We’re supposed to have a system of government under which Congress makes the law, and the president takes care that the law is faithfully executed. The Roberts Court seems to think it’s OK for the president to make the law. And it will push back in very carefully tailored ways, trying not to undermine their own extraordinarily indulgent view’ of the president’s authority, he says.

The Court’s Public Information Office has avoided addressing specific controversies over the shadow docket while occasionally offering neutral descriptions of emergency applications as routine matters intended to provide an interim status quo while the underlying litigation proceeds.

Undermining the legal profession

Meanwhile, President Trump is moving in other ways to suppress the ability of the courts and the legal profession to oppose him. Not long after taking office, he began issuing executive orders and presidential memoranda aimed at punishing law firms and lawyers he viewed as political opponents. Firms targeted included Perkins Coie, WilmerHale and Jenner & Block.

The orders sought to strip from the firms any government contracts they held and ban their attorneys from entering federal buildings. Several of the firms sued – and in each case, the executive order was eventually blocked by federal judges.

‘Settling personal vendettas by targeting a disliked business or individual for punitive government action is not a legitimate use of the powers of the US government or an American president,’ wrote US District Judge Beryl Howell, sitting in Washington, DC, in a forceful 102-page ruling that blocked the executive order against law firm Perkins Coie. The Trump administration filed a notice of intent to appeal.

The administration ‘seems to be just throwing everything at the wall and seeing what sticks,’ says Matt Kaiser, Co-Chair of the IBA Criminal Law Committee. ‘This is not a good faith attempt to work within the law.’ What they want, believes Kaiser, is controversy and attention. ‘The way the news-cycle works – especially for people who aren’t lawyers or who aren’t paying attention super carefully – is Trump punishes law firms who disagree with him,’ he explains. ‘And then, six weeks or two months later, there’s a ruling by a judge saying that was illegal. The first splashy Trump-does-crazy-thing story gets a lot of attention. And then the sober, quasi-technical, judge [slapping] down the Trump-crazy-thing doesn’t get attention.’

In June, the American Bar Association (ABA) brought a lawsuit against the president for his orders against law firms and lawyers, calling Trump’s actions an intimidation campaign. ‘The President’s attacks on law firms through the Law Firm Orders are thus not isolated events, but one component of a broader, deliberate policy designed to intimidate and coerce law firms and lawyers to refrain from challenging the President or his Administration in court, or from even speaking publicly in support of policies or causes that the President does not like,’ the ABA filing says. In response, a White House spokesperson called the lawsuit ‘clearly frivolous’.

President Trump’s attacks on the law haven’t stopped with targeting law firms and lawyers. In June, the administration filed suit against all 15 federal judges in the state of Maryland. With the administration racing to deport more and more migrants, US District Chief Judge George L Russell III issued a standing order blocking the Department of Homeland Security from removing people who have filed a habeas corpus petition for at least two business days.

The intention was to give migrants facing deportation a reasonable opportunity for review of their detention. But even that speed bump was objectionable to the Trump administration. Chief Judge Russell’s order is ‘another regrettable example of the unlawful use of equitable powers to restrain the Executive,’ the government’s complaint argues.

‘When you look at the attack against the judiciary, this new lawsuit against a Maryland court is a remarkable escalation,’ says Kaiser, who’s a partner at law firm Kaiser in Washington, DC. Conservative litigator Paul Clement, who represented the US before the Supreme Court during the administration of President George W Bush, has been retained by the Maryland judges. Where this all lands will probably be determined by the willingness of the Supreme Court to directly confront the president, which the justices thus far have avoided.

William Roberts is a US-based freelance journalist and can be contacted at wroberts3@me.com

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