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Donald Trump’s lawbreaking spree has now been met with an unprecedented series of judicial rebukes. Just yesterday, five federal courts blocked some of his administration’s moves to shut down agencies, illegally fire anticorruption officials, and more. Office of Management and Budget Director Russell Vought once said we were living in a “post-constitutional era.” We’re finding out if that is true.
Start with the central fact: In his first days, Trump effectively claimed the ability to control federal spending without Congress, freezing trillions of dollars in grants and loans. This violates the Constitution’s core separation of powers, as well as the Impoundment Act and numerous other specific rules. He unilaterally shut down agencies including the U.S. Agency for International Development (USAID), the world’s largest humanitarian organization. Yesterday he effectively shuttered the Consumer Financial Protection Bureau, which was created after the 2008 financial crash in an attempt to ward off more fraud in the markets. Scientists across the country are realizing that funds have essentially been cut off for vital research. He’s done all this while tasking the world’s richest man, who paid for much of Trump’s campaign, with destroying agencies, one at a time.
State attorneys general, public employees, and nonprofits all sued, and courts blocked this presidential power grab. Over and over, Trump’s team lost. It’s a record of court losses unmatched since, well, his effort to undo the result of the 2020 election.
Presidents must follow court orders. Ever since the Civil War, they have, often unhappily. Whatever debates there might be about the powers of the three branches of the federal government, if you don’t like a lower court ruling, you appeal it — you don’t ignore it.
On Saturday, Judge Paul Engelmayer blocked one of the most controversial and scariest moves: the takeover of the Treasury Department’s federal payments system by Elon Musk and his callow band of engineers. Robert Rubin, Lawrence Summers, and three other former treasury secretaries warned of Musk and Trump’s assault on the Constitution. “A key component of the rule of law is the executive branch’s commitment to respect Congress’s power of the purse: The legislative branch has the sole authority to pass laws that determine where and how federal dollars should be spent.”
Vice President JD Vance responded to the judge’s order by declaring that “judges aren’t allowed to control the executive’s legitimate power.” Musk called the ruling “shady” and “absolutely insane!” So far this huffing and snorting may just be bluffing. Earlier this week, the Treasury Department told the court that it would abide by the judicial order and promptly appealed. That’s what you are supposed to do.
Another federal judge warned that the administration had not complied with his order to unfreeze federal research spending. The government insists that it is trying to do so. This may be a quiet, insidious strategy: Don’t loudly announce defiance of the law, just do it softly while insisting that all is well. (It is also possible that the federal government is not a toggle switch that can be turned on and off.)
Many of these cases will head to the Supreme Court soon. Generations of justices have insisted on following judicial orders. But this is the same supermajority that truckled to Trump in the immunity case last summer, if nothing else giving him a permission structure for lawlessness. Will the Supreme Court step up?
I’m no fan of judicial overreach. There are reasons to think that the system of individual judges issuing national injunctions is not a good one. We’ve decried judges like Matthew Kacsmaryk, who tried to impose his own anti-abortion views nationwide by undoing the quarter-century-old federal approval of mifepristone. Liberals should be self-aware as we lionize a federal judiciary that too often has proven itself captured by big money and extreme factions.
But refusing to follow a court order crosses a very clear, very dangerous line. If Trump refuses to follow court orders, especially from the Supreme Court, we will have tipped from chaos into dire crisis.
Checks and balances require Congress to do its part. Don’t bet on it. Today’s Republican lawmakers are prostrate before the executive.
The justices must do their part, too. Vance’s bluster may aim to cause them to back off. This Court, if nothing else, has rhetorically been committed to the notion that Congress, not unelected bureaucrats, must set the laws. If ever there were a “major question” (the recently invented doctrine used to block environmental regulations), it would be what Musk and his minions are doing.
And we the people have to do our part, too. It’s been heartening to read that Capitol Hill switchboards are jammed. In Pakistan and Israel, when the courts have been threatened, citizens protested in the streets. We hope it won’t come to that, but all of us should be ready.
