Unlike the opening of Mr. Trump’s first term in 2017, little significant resistance to his second term has arisen in the streets, the halls of Congress or within his own Republican Party. For now at least, lawyers say, the judicial branch may be it.
“The courts really are the front line,” said Skye Perryman, the chief executive of Democracy Forward, which has filed nine lawsuits and won four court orders against the Trump administration.
The multipronged legal pushback has already yielded quick — if potentially fleeting — results. Judicial orders in nine federal court cases will, for a time, partially bind the administration’s hands on its goals. Those include ending automatic citizenship for babies born to undocumented immigrants on U.S. soil; transferring transgender female inmates to male-only prisons; potentially exposing the identities of F.B.I. personnel who investigated the Jan. 6, 2021, attack on the Capitol; coaxing federal workers to accept “deferred resignation” under a tight deadline; and freezing as much as $3 trillion in domestic spending.
The judiciary’s response to the legal challenges is continuing through the weekend. On Friday afternoon, Judge Carl Nichols, a district judge nominated by Mr. Trump. said he would issue a temporary restraining order halting the administrative leave of 2,200 employees at the U.S. Agency for International Development and the looming withdrawal of nearly all of the agency’s workers from overseas.
Also, late on Friday night, Judge John D. Bates, a nominee of President George W. Bush, rejected a request by a coalition of unions for an emergency order blocking Elon Musk’s team from accessing Labor Department data. While that case is ongoing, Judge Bates’s ruling was the first victory for Mr. Trump’s new administration in federal court. In the early hours of Saturday, U.S. District Judge Paul A. Engelmayer, one of President Obama’s nominees, restricted access by Mr. Musk’s government efficiency program to the Treasury Department’s payment and data systems, saying access would risk “irreparable harm.”Image
Judges have not minced words. In Seattle last week, a district judge issued the second nationwide injunction blocking Mr. Trump’s order to end universal birthright citizenship. “The Constitution is not something with which the government may play policy games,” Judge John C. Coughenour said. Such a change, he added, could be made only through amending the Constitution. “That’s how the rule of law works.”
But while the executive branch is entrusted with the capacity for swift, decisive action, the judiciary is slow by design, and the legal opposition to Mr. Trump’s opening moves may struggle to keep up with his fire hose of disruption.
“Last night I was eating dinner with my family with an earpiece in my ear listening to a conference call and trying to be a dad at the same time,” Attorney General Rob Bonta of California said in an interview on Friday. “It’s hard work, but we’re not asking anyone to feel sorry for us. This is what we signed up to do.”
Mr. Trump’s first three weeks in office have yielded scores of executive orders to upend American foreign aid, domestic spending and social policy, many in open defiance of existing law. Without buy-in from or even consultation with the legislative branch of government, the president has wielded unilateral executive power in an attempt to dismantle parts of the government, override regulations governing civil service, overturn more than a century of precedent on immigration law, seek possible vengeance on his perceived enemies, and roll back liberal advances made in diversity and equity and transgender rights.
“No president should be able to rewrite 120-plus years of interpretation of the Constitution with a stroke of a pen,” said Dan Rayfield, Oregon’s attorney general, in an interview. “That is the existential threat.”
Some legal experts see the executive branch’s deliberate effort to push the boundaries of legality as a bare-knuckle strategy to overwhelm the president’s opposition and eventually win at least some precedent-shattering decisions from the conservative Supreme Court.
“The administration seems to have wanted challenges that consume a ton of resources — of opponents, courts and public attention — even as members of the administration know the provisions do not square with the law that exists,” said Judith Resnik, a professor at Yale Law School.
To Mr. Trump’s backers, the president’s orders are well within the powers outlined in the Constitution’s second section on the executive branch. It is the judicial pushback, they say, that is overstepping the constitutional boundaries laid out in the third section on the judiciary.
“President Trump is not stealing other branches’ powers,” said Mike Davis, who heads the Article III Project, a conservative advocacy group. “He is exercising his Article II powers under the Constitution. And judges who say he can’t? They’re legally wrong. The Supreme Court is going to side with Trump.”
Sunday on X, Vice President Vance made a provocative post that seemed to suggest that when it comes to the legality of the White House’s orders, judges do not have the final say. “Judges aren’t allowed to control the executive’s legitimate power,” he wrote.
If a judge tried to tell a general how to conduct a military operation, that would be illegal.
If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.
Judges aren’t allowed to control the executive’s legitimate power.
— JD Vance (@JDVance) February 9, 2025
https://platform.twitter.com/widgets.js
Mr. Vance’s post “opens the door to a potentially dangerous path,” said Quinta Jurecic, a fellow at the Brookings Institution and a senior editor at Lawfare. “What Vance’s wording suggests here, without directly saying it, is that the executive could potentially respond to a court order by saying to the court, ‘You’re unconstitutionally intruding on my authority and I’m not going to do what you say.’”
“At that point,” Ms. Jurecic said, “The Constitution falls apart.”
As of Sunday afternoon, there was already at least one indication that existing court orders issued by federal judges to block Mr. Trump’s executive actions were not immediately changing the administration’s behavior on the ground. An emergency motion filed Friday by 22 state attorneys general before Judge John J. McConnell Jr. in Rhode Island district court claims an “ever-changing kaleidoscope of federal financial assistance that has been suspended, deleted, in transit, under review, and more,” despite a court order from Judge McConnell on Jan. 31 to end the funding freeze.
Further, the states say, the administration is claiming it can still freeze billions of dollars that are due under the Inflation Reduction Act and the bipartisan infrastructure act.
The Justice Department has until the end of Sunday to reply to the emergency motion.
According to the White House, Mr. Trump’s electoral victory in November gives him a mandate to exercise extraordinary power, narrow as the popular vote margin was.
“Every action taken by the Trump-Vance administration is fully legal and compliant with federal law,” Harrison Fields, a White House spokesman, said in a statement. “Any legal challenge against it is nothing more than an attempt to undermine the will of the American people.”
That should, in fact, be for the courts to determine — if Mr. Trump abides by their decisions.
Final judgments won’t come any time soon. Judge Coughenour’s injunction blocking Mr. Trump’s executive order to end automatic citizenship for children born on U.S. soil has already been appealed by the Justice Department to the U.S. Court of Appeals for the Ninth Circuit.
The ascent of some cases through the trial courts, to the appellate courts, and then to the Supreme Court could take months. Those lengthy battles will be political as well as legal, pitting a president who sees himself as the almost invincible leader of a populist movement against attorneys general, almost all Democrats, with their own ambitions, some legal scholars say.
“The attorneys general swung into action quickly. If they eventually prevail in court and in public opinion, they will reap political dividends for their perceived defense and vindication of their citizens’ rights,” said Akhil Reed Amar, a professor at Yale Law School.
If the attorneys general are using the campaign against Mr. Trump to burnish their own political futures, Mr. Amar added, that too is by design. “Our Constitution was designed so that ambition would counter ambition,” he said. “That is how the framers drew up the blueprint.”
Those pursuing the cases say they are unsurprised by the task ahead. Parallel efforts by Democracy Forward and the Democratic attorneys general to prepare for a second Trump presidency have been underway since early 2024. Now, coalitions of plaintiffs huddle on Slack long after midnight to prepare complaints in response to the administration’s latest moves. For the most part, the attorneys general have presented a united front, with some occasional last-minute jostling to decide who will get top billing as one of the leaders of the case, and in which venue it will be filed.
The one surprise factor? Elon Musk, the billionaire businessman who has been handed extraordinary — and possibly illegal — powers to cut and reshape the government, with no real title or Senate confirmation.
Matthew J. Platkin, New Jersey’s attorney general, called Mr. Musk “the one wild card” thrown at them.
“I’m not even sure Trump knows what he is doing,” Mr. Platkin said of Mr. Musk. “He’s an unelected billionaire running around government, slashing huge amounts of the work force and behaving in all kinds of potentially illegal ways.”
In legal filings, the Justice Department has argued that Mr. Musk’s associates are acting lawfully as employees detailed to agencies across the government and that they are under the authority of acting cabinet members.
The states have “special solicitude” as plaintiffs, a doctrine that draws on a 2007 Supreme Court ruling. That doctrine, which has carried less weight in recent years, makes it easier for states to bring lawsuits claiming that their rights or the rights of their citizens have been violated. It may be harder for those same states to apply that doctrine in claims against Mr. Musk’s teams, which operate at the federal level and affect the states less directly, according to lawyers familiar with the effort by attorneys general.
But that wrinkle did not stop Judge Engelmayer from siding, for now, with Letitia James, attorney general of New York, and 18 other Democratic attorneys general in their effort to keep Mr. Musk’s teams out of sensitive Treasury Department systems.
They argued that giving the government efficiency team access would violate the Constitution, and harm states that rely on the Treasury Department to fund child support payments and recover debts.
“I think right now we’re in the midst of a constitutional crisis,” said Ms. James, when the lawsuit was announced last week.
Ms. Resnik, the Yale Law School professor, said that while she expected the legal system to be “resilient,” it was hard to overstate the stakes for the judiciary in the coming weeks and months.
“Unbounded power is the antithesis of the U.S. Constitution,” she said. “That point is on display every time you enter the U.S. Supreme Court, where etched in stone are the words: ‘equal justice under law.’”
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Via https://www.nytimes.com/2025/02/09/us/trump-federal-courts-lawsuits.html
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