The Legitimate Scope Of Judicial Restraints On Presidential Authority; The Need For Politically Neutral Principles
/Now more than four months into President Trump’s second term, there have been dozens of District Court injunctions blocking policies that the new administration has sought to implement. Deportations of gang members illegally in the U.S. back to El Salvador? Enjoined! Mass firings at USAID? Enjoined! Other mass firings at 22 other agencies and departments? Enjoined! Cancellation of funding of certain grants for Harvard? Enjoined! Ending of eligibility for Harvard to participate in foreign student visa program? Enjoined! Termination of federal funding for public schools maintaining DEI programs? Enjoined! Termination of security clearances for certain prominent law firms? Enjoined! And these are just examples among many more.
It seems that whatever new policy President Trump tries to implement, it will be enjoined within days by some left wing federal judge. Professor Adrian Vermuele of Harvard in a May 23 tweet called these pervasive injunctions “basically an automatic judicial veto on all new policy.” He commented, “let’s please not call it democracy.” It’s actually the opposite of democracy: President Trump tries to implement the policies he promised to implement and that the voters elected him to implement; and the unelected judges — almost all appointed by presidents of the party that just got voted out — stop him.
But before you get too outraged about the courts (and Democrat-appointed judges) blocking President Trump’s every move, let’s not forget about a few constraints that the courts imposed on prior President Biden. If you disagree with what the courts have just done in the list of injunctions in the first paragraph of this post, you might nevertheless find yourself agreeing with some big constraints that landed on Biden. For example, in Biden v. Nebraska, the Supreme Court held that President Biden did not have the authority under the Higher Education Act to engage in mass forgiveness of student loans; and in West Virginia v. EPA the Supreme Court held that the Biden EPA did not have the authority under the Clean Air Act to force the closure of all electric power plants using fossil fuels. The Supreme Court justices who voted to imposed these constraints on Biden were all appointed by Republicans.
So almost everyone, left or right, would agree that the courts have at least some legitimate role in reining in overreach by the executive branch. But the cases are so politically charged that one’s view of the outcome of any given case tends to turn almost entirely on the party of the President who got blocked. Republicans cheer on the courts when they block Democratic presidents, and Democrats are currently cheering on the courts when they block President Trump. At the District Court level, both sides forum shop for a friendly judge appointed by a president of their own party when trying to block an action of a president of the opposite party.
What is badly needed here are politically neutral principles by which one can distinguish the legitimate uses of the courts’ role in restraining executive overreach from the illegitimate. Remarkably, the Supreme Court to date has not really laid down such principles to any significant extent. The reason for that is that before now cases have not come before the Court requiring it to do so. But now things are different. President Trump is challenging the rule of the permanent bureaucracy to a far greater degree than did the two Bushes, or even Reagan or Nixon.
I don’t think there’s any single easy bright-line test that can separate the legitimate from the illegitimate uses of the judicial power to rein in the president. Instead, as cases come before it, I think the Supreme Court needs to lay down a set of guidelines for the lower courts, and then enforce those guidelines via prompt reversals of lower courts that step out of line.
Here are some suggestions that I will make for some proposed politically neutral principles:
The Constitution must be the fundamental guidestar of the enterprise. Most important are the provisions that “all legislative powers . . . shall be vested” in the Congress (Article I, Section 1), “the executive powers shall be vested” in the President (Article II, Section 1), and that the President “shall take care that the laws be faithfully executed” (Article II, Section 3).
Injunctions, and particularly preliminary injunctions, to force the executive branch to do anything, should be strongly disfavored. The main function of the preliminary injunction has historically been to preserve the status quo while the case proceeds. Many of the current round of preliminary injunctions have followed the opposite of this principle, for example by forcing the government to spend money that can then never be recovered. Note that neither the Biden v. Nebraska case, nor West Virginia v. EPA, involved any injunction. Rather, the Court just stated what the law is, and expected the executive to follow it.
There should be essentially no constraints on the President firing at will anyone in the executive branch. The alternative is that large numbers of people work in the executive branch who disagree with the President’s policies and work to undermine him. This is fundamentally at odds with the vesting of all executive power in the President, and with the President’s duty to take care that the laws be faithfully executed. It is also fundamentally at odds with the principle of democracy, that is, that the people get to change the government’s policies by voting in a new President promising new policies. Yes, there are many statutes purporting to protect the jobs of government employees. To the extent that the employees in question have any role in deciding or influencing policy, those statutes are unconstitutional.
The courts should have a very limited role in forcing the President to spend money appropriated by Congress. Most appropriation statutes do not say that the President must spend the money, but just say that x dollars are made available for the program. The courts should not interfere in a President’s decision to spend less than all the money. Yes, it is different if money has been contractually committed, or if Congress has specifically directed that x dollars must be spent; but even in those cases, a new incoming President should have the ability to hold up funds on grounds that, for example, there may have been corruption that needs to be investigated.
The role of the courts should be very limited in situations that involve the core functions of the executive branch, for example decisions on how to enforce laws (e.g., immigration laws), and decisions with respect to foreign policy.
By contrast, an area where the courts have a very important role in keeping the executive branch in line is the area of potential usurpations of the legislative power through overreaching regulations or executive orders. This was the situation in both Biden v. Nebraska and West Virginia v. EPA, in both of which the executive branch under Biden sought to assert vast powers never granted to it by legislation.
Analogous to President Biden’s overreaching with student loan forgiveness and greenhouse gas regulations is President Trump’s overreaching with tariffs. Perhaps you are wondering how it is that President Trump asserts the authority to impose a tariff of 100% on some country one day, make it 200% the next day, then back to 50% a week later, and so forth in a series of dizzying moves. The answer is that there is something called the International Emergency Economic Powers Act, enacted back in 1977. The IEEPA grants power to the President to take certain actions, including imposing tariffs, in the event of the declaration of a “national emergency.” It turned out that giving Presidents the right to declare national emergencies was an open invitation to abuse. This is from Congress’s website:
As of January 15, 2024, Presidents had declared 69 national emergencies invoking IEEPA, 39 of which are ongoing. History shows that national emergencies invoking IEEPA often last nearly a decade, although some have lasted significantly longer. . . .
Numerous cases have been brought challenging President Trump’s use of the IEEPA and so-called “national emergency” powers for his series of actions on tariffs. The forum for these cases is the US Court of International Trade. Plaintiffs in the cases include many states (both red and blue) and something called the Liberty Justice Center. Here is a report from Professor Ilya Somin of the Scalia Law School on the argument of one such case that took place on May 24. Excerpt:
Judge Restani repeatedly noted that the government's position would allow the president to declare an "emergency" for any "crazy" reason, and then impose whatever tariffs he wanted.
I have not studied the details of these cases and the wording of the statute sufficiently to have a view of how it might come out. However, I do support the idea that the courts have a real role in restraining the President from making up the “law” as he goes along, thus usurping the legislative function that is delegated only to the Congress.