President Donald Trump has activated the military on U.S. streets, attempted to oust a Federal Reserve board governor and threatened to prosecute his political opponents — all in the past few weeks.
Trump is testing the limits of presidential authority at a steady clip. And some of his opponents fear that with a conservative majority on the Supreme Court, not even the courts will stop the president from overreach.
“The federal appeals courts have also been deciding against Trump overwhelmingly, in something like around 70% of the cases,” Rep. Jamie Raskin of Maryland told NOTUS. “But when you get to the Supreme Court, which has been sliced and diced and gerrymandered by Republicans, we have a serious problem. And that’s where the court has been slicing the baloney very fine, to allow Trump to get away with a lot of unprecedented usurpation of power.”
The Trump administration has faced at least 383 legal challenges, according to Just Security. Fifteen of them are just from this month.
Federal Reserve governor Lisa Cook said Tuesday she would sue over Trump’s announcement that he was firing her, which the president said was for cause and Cook’s attorneys called an “illegal action.” (Trump told reporters he would “abide by the court” on the matter.)
Trump’s order this week attempting to criminalize flag burning also faced immediate challenges, given flag burning is a First Amendment right established by the Supreme Court, and has been since 1989.
But it’s difficult for legal groups that lead challenges to these policies to triage their efforts, even when they expect courts to find Trump’s actions unconstitutional. The cases then have to wind their way through the courts. The president, in contrast, can move quickly; Trump has signed nearly 200 executive orders so far this year.
By issuing a steady stream of legally provocative, sure-to-be-challenged orders, administration officials ensure that challengers, mostly good governance and civil liberties groups, have to choose between fires to attempt to put out. It’s an explicitly stated political strategy by Trump officials to overwhelm their perceived opponents.
“The fact that the zone is being flooded with shit, to use a familiar phrase, certainly is an obstacle that the nonprofit legal sector has to contend with,” said Will Creeley, legal director at the Foundation for Individual Rights and Expression, a legal defense organization that’s taken up high-profile free expression issues for conservative and progressive groups alike.
“The past six months have been remarkable for their scope — for the scope, severity and volume of the threats to free expression,” Creeley added. “I’ve been doing this work for just about 20 years, and I don’t remember anything comparable.”
Still, lawyers involved in challenges to the administration say they’re mostly optimistic that the judiciary is holding up.
“So far, our institutions have proven stronger than Trump seems to think they are,” Ben Wizner, director of the American Civil Liberties Union’s Center for Democracy, told NOTUS.
The ACLU has filed more than 80 lawsuits against the Trump administration since the president’s inauguration in January and has successfully obtained injunctions three-quarters of the times it has requested them, Wizner said.
“Although there are high-profile examples of the administration thumbing its nose at the courts, in the mine-run of cases, the administration is complying with court orders, and courts are ruling against the administration,” Wizner added.
But the Supreme Court, where many of the questions about presidential authority are likely to land, remains a major question mark. Three of the six conservative justices were appointed by Trump, and the court has ruled in the president’s favor in multiple high-profile cases.
“The results speak for themselves: the Trump Administration’s policies have been consistently upheld by the Supreme Court as lawful despite an unprecedented number of legal challenges and unlawful lower court rulings,” said Abigail Jackson, a White House spokesperson, in a statement to NOTUS. “The President is working to lawfully deliver on the many campaign promises he made to the American people and his success in doing so will continue.”
Just last week, the Supreme Court signed off on Trump’s cutting of hundreds of millions of dollars of National Institutes of Health grants that the administration said were connected to diversity, equity and inclusion initiatives.
The Supreme Court is likely to consider many other cases involving Trump’s authority. On Wednesday, the administration asked the court to allow the government to freeze foreign aid.
Many other cases against Trump are still pending, including challenges over his deployment of troops in Los Angeles, the administration’s efforts to defund so-called “sanctuary cities” and even parts of a lawsuit regarding his domestic use of the military during his first term.
There’s another looming question beyond how the courts will rule: What will happen if Trump and his allies don’t comply?
The president, White House officials and allied lawmakers have attacked judges who ruled against Trump’s policies, decrying them as political opponents without legitimate grounds to check the president’s authority. Creeley said he feels a “deep worry” that Trump is attempting to build support among his base to defy the judiciary.
“The attacks on judges build up the expectation amongst the president’s political supporters that the judiciary is corrupt. They are setting the table for some later action that would discredit or disempower the judiciary. They seem to serve as a one-way ratchet,” Creeley said. “Maintaining the rule of law and the proper respect for and separation of power, that’s what our constitutional order relies upon.”
“When that breaks, all bets are off,” he added.