Can Congress create federal agencies with power to enforce the laws and prosecute crimes, but which agencies are outside the control of the President? In a 1935 decision called Humphrey’s Executor, the Supreme Court held that it could.

I first wrote about this subject in a post back in December 2016 titled “Can The Separation Of Powers Of The Federal Government Be Righted?” December 2016 was immediatey after Donald Trump had first been elected President, but before he had taken office. The backdrop of the post was the issue of the extent to which the newly-elected President Trump would be able to gain control over a hostile federal bureaucracy.

By 2016, some 80+ years after Humphrey’s Executor, there had come to be some 50 or more commissions and boards in the federal government where the President was restricted by statute from firing the commissioners or members, and thus had limited if any practical ability to direct what the agency would do. My conclusion in 2016 was that, largely because of Humphrey’s Executor, the situation of the constitutional separation of powers in the federal government was a hopeless mess, and that it would be a long time before it could be righted. Sure enough, Trump did not take on this issue during his first term.

But here in the first year of Trump’s second term, he has gone directly after this issue.

The first nine months of the second Trump administration have seen extraordinary litigation efforts by opponents of the government seeking to block its initiatives of every sort.

This page at Lawfare Media tracks some 190 active cases challenging Trump administration actions; and I don’t think that that list of 190 is comprehensive. The cases cover subject matter areas ranging from spending reductions to employee terminations to migrant deportations to regulatory actions, among many others.

Those following these litigations, or some of them, have undoubtedly noticed a pattern whereby a District Court judge, usually in a blue state, enjoins the administration’s action, only to have that injunction stayed by a Court of Appeals or by the Supreme Court within a few days or weeks. This pattern has been repeated multiple times in areas including spending reductions and migrant deportations.

Although none of the cases has yet reached full merits review at the Supreme Court, nevertheless there is a growing sense of District Court judges going beyond their job of enforcing the law, and instead seeking to supplant legitimate executive authority with their own policy preferences.

The latest series of cases involves the efforts of President Trump to deploy units of the National Guard to Portland and Chicago to support the efforts of ICE in those cities to enforce the federal immigration laws.