Trump’s orders to restrict the rights of transgender individuals are unfair, but that may not matter to conservative judges. In the meantime, finding an effective legal response to the DOGE onslaught across the federal government will be a challenge for lawyers. Can the courts stop Trump? Will they? For the next few years, anyway, they are the last best hope.
By The Washington Post
Can President Donald Trump be stopped? More precisely—with a Republican-controlled Congress—to what extent will the legal system be able to stop his onslaught of executive orders and other questionable actions? Can blue states and private plaintiffs resist—or is the venting of Trumpian excesses too powerful to mount an effective counterattack? And, more critically, are the courts—ultimately the Supreme Court—more likely to accept Trump’s inflated conception of presidential authority or to limit his excesses? If they dare to frustrate his will, would Trump comply, or would it trigger a constitutional crisis? There is reason for cautious optimism here.
Look at the poor legal record of the first Trump administration and the similar response of the courts to his efforts for a second term. Significantly, the lower the opposition to Trump, the more well-funded and organized the legal opposition is, with state attorneys general coordinating litigation strategies and outside groups poised to bring cases as well.
But there are also many reasons for concern. Those who challenge illegal dismissals may ultimately win, for example, but they will probably do so after much damage has been done by a broken and silent bureaucracy. The same goes for the dismantling of agencies such as the US Agency for International Development.
Destroying everything is precisely the goal. During his first term, lawyers managed, time and again, to restrain Trump; this Trump is now openly ignoring legal requirements. He seems to welcome the opportunity to cross legal boundaries, the better to assert executive authority and challenge the courts to stop him. If the past is prologue, the courts will offer Trump a stop. During his first term, Trump had the lowest success rate of any president since Franklin D. Roosevelt—this despite the fact that he managed to appoint three justices himself and ultimately enjoyed a conservative majority of six. Trump’s record in his first term reflected both the extremism of the administration’s positions and its disregard for its execution.
The Supreme Court blocked Trump’s efforts to add a citizenship question to the census, calling his justification “contrived.”
She rejected his attempt to end protections for “dreamers,” undocumented immigrants who came to the United States as children, saying again that the administration had not provided a sufficient basis for its action.
She upheld Trump’s travel ban from several Muslim-majority countries, but only after the administration had to submit three versions of the rules to pass review. Trump’s performance in lower courts was even worse. According to an analysis of challenges to Trump administration regulations and other agency actions by the Institute for Policy Integrity at New York University School of Law, the administration won only 22 percent of its cases. So did Trump’s second term. Two federal judges — one appointed by Ronald Reagan and the other by Joe Biden — blocked his attempt to limit the constitutional guarantee of citizenship by birth. Two other judges — one appointed by Reagan and the other by Bill Clinton — refused to allow transgender women in prison to be transferred to male-only facilities, as required by a Trump executive order.
Two other judges – one appointed by Barack Obama and the other by Biden – ordered Trump not to implement the federal funding freeze.
Another, appointed by Clinton, oversaw a deal to limit access by officials of the U.S. Department of Government Efficiency Service, or DOGE, to a sensitive Treasury Department payment system.
And on Thursday, a Clinton-appointed judge in Massachusetts temporarily suspended a deadline, set to expire at midnight that night, for federal workers to accept or reject a surprise and contested job buyout offer. In short, the administration’s legal record so far is zero to seven — and there are a number of lawsuits still pending, from challenges to Trump’s immigration orders to his efforts to strip federal workers of their civil service protections to Elon Musk’s actions on DOGE. If there was a lesson from the first Trump administration to the second, it’s that it doesn’t reflect on the quality of work products.
The poorly written and now-removed Office of Management and Budget directive that implemented the spending freeze is a clear example. Harvard Law School professor Jack Goldsmith, a veteran of the George W. Bush Justice Department, predicts major hurdles for Trump in court. “Trump can’t just snap his fingers and reverse Biden’s environmental regulations, or block federal funds, or deport millions of illegal immigrants, or fire ‘deep state’ officials,” Goldsmith wrote in his substack, Executive Functions. “Congressional statutes and the Constitution limit these and many other elements of presidential power. Trump administration lawyers can try to interpret these limitations, but ultimately, it will be the Supreme Court that decides,” Goldsmith added.
“The court blocked many of Trump’s exploits in his first term. I believe it will do so in his second, in cases where it has jurisdiction to do so – especially if Trump and his administration project disregard for the law.” This instructs us not to despair, but not to be calm.
I am more pessimistic than Goldsmith for three reasons. First, the court’s conservative majority has been strengthened since those first-term decisions. Second, the potential outcome of the lawsuits is important, of course, but the damage that could be done in the interim is colossal; it will matter if Trump’s efforts are blocked while the cases move through the courts. Third, and most troubling, we must take seriously the possibility that Trump will provoke a constitutional clash and ignore a court order, as his own vice president has advised.
The judges, wary of provoking such a crisis, may tread carefully as a result. But what happens next—whether it will rouse congressional Republicans—is unclear. The lawsuits are necessary, but they will be less effective without visible support from an angry populace or a frustrated Congress. My prediction is that those fighting Trump will have mixed success. Repealing the constitutional guarantee of birthright citizenship or allowing Trump to ignore Congressional spending decisions would, I predict, be a step too far even for this court. Trump’s other initiatives may have more success.
Conservative judges are sympathetic to his push to expand presidential power over independent agencies. Trump’s orders restricting the rights of transgender individuals are unfair, but that may not matter to conservative judges. In the meantime, finding an effective legal response to the DOGE onslaught across the federal government will be a challenge for lawyers. Can the courts stop Trump? Will they? For the next few years, at least, they are the last best hope.
