GOP, Democrats grapple over judiciary power
Congress held a hearing over the judiciary’s role as multiple injunctions come on the heels of President Trump’s executive orders.
WASHINGTON – Everything is an “emergency” in the legal fight over President Donald Trump’s second-term policies − and the courts are groaning under the weight of it all.
Trump signed a record number of executive orders – 109 in the first 70 days of his second term – to get his administration off to a fast start rather than wait for Congress to haggle over legislation. The rate eclipsed the 99 executive orders that then President Franklin Delano Roosevelt signed in his first 100 days in 1933 to combat the Great Depression.
In his address to Congress last month, Trump boasted that his reason for taking “swift and unrelenting action” since returning to the White House was to drain “the swamp” of “unelected bureaucrats” in the federal government.
“We have accomplished more in 43 days than most administrations accomplished in four years or eight years,” Trump said. “And we are just getting started.”
The president’s urgent pace has upended lives. A ban on transgender troops, for example, forced the cancelation of surgery for a Navy petty officer who had already been hooked up to an IV and had his chest marked for a double-mastectomy.
In recent weeks, tens of thousands of workers have been laid off as agencies such as the U.S. Agency for International Development, the Consumer Finance Protection Bureau and the Education Department were dismantled. The Department of Health and Human Services dismissed nearly one-fourth of its staff, some swiftly enough that workers who arrived at their offices April 1 found their badges no longer worked.
‘Emergency fire drills’: lawsuits against Trump policies flood courts
Speed is critical for those fighting Trump too.
Federal workers, unions, troops and others have raced to federal courts with more than 150 lawsuits against the president, his billionaire adviser Elon Musk and the rest of the administration.
In at least 67 cases through March 28, the litigants made emergency requests to judges to temporarily block Trump’s policies with restraining orders or injunctions, according to a review by Steve Vladeck, a law professor at Georgetown University. Judges temporarily blocked policies at least 46 times, Vladeck found.
In one case, the judge’s emergency order prevented the deportation of Venezuelan immigrants to a notorious prison in El Salvador between the time Trump signed an executive order without fanfare on a Friday and when it was published the next day.Trump, in turn, has quickly appealed many of the adverse decisions. He and Musk have also called for impeachment of judges who rule against him, including the one in the deportation case, which drew a rebuke from Supreme Court Chief Justice John Roberts and raised concerns about a constitutional crisis.
Eight emergency requests have already reached the Supreme Court through March 28 and justices could decide at any time whether to lift the lower-court blocks on Trump policies. For comparison, that’s the same total of emergency requests as filed during the entire 16 years of the administrations of then Presidents George W. Bush and Barack Obama, according to Vladeck. Dozens more Trump cases appear headed to the Supreme Court, which government lawyers argued “threatens to swamp this Court’s emergency docket.”
Congressional Republicans are debating ways to prevent U.S. district court judges from halting Trump policies for the entire country, as they have at least 17 times this term. Lawmakers are also considering making it easier to appeal temporary orders blocking administration policies.
“At some point, this process will break,” Josh Blackman, a law professor at South Texas College of Law in Houston, told USA TODAY. “The courts are not equipped to run so many emergency fire drills, on top of their other business.”
Legal experts said the crush of cases and their urgency resulted from Trump’s record-setting pace of actions that 39 judges in 11 districts ruled unlawful and likely to cause irreparable harm to the people targeted.
“They’ve done massive firings and triggered massive lawsuits and now there are massive appeals,” Jeremy Paul, a law professor at Northeastern University, told USA TODAY. “They caused all this. It’s absolutely clear that the fault is with them.”
Trump’s record pace for action — and lawsuits
Trump is eager to change the federal government quickly in his mold, as Roosevelt did with his New Deal. Trump is fresh off an election − and is term-limited by the 22nd Amendment − where Republicans won the popular vote for the first time in 20 years and control the White House, Senate and House.
“First, I will declare a national emergency at our southern border,” Trump said Jan. 20 at his inauguration inside the U.S. Capitol. “The inflation crisis was caused by massive overspending and escalating energy prices, and that is why today I will also declare a national energy emergency. “
Roosevelt created the concept of measuring a new presidency by what is accomplished in the first 100 days. But besides his executive orders, he built consensus with his fellow Democrats who controlled Congress to approve more than a dozen pieces of legislation including a major banking act, a securities act, creation of the Civilian Conservation Corps and creation of the Tennessee Valley Authority.
Beyond the budget and tax battle that’s on track to occupy GOP-dominated Capitol Hill through the summer, Trump’s focus since taking office has largely been on his executive orders that sparked an unprecedented backlash in the courts. Federal workers, migrants and transgender troops are among the groups arguing that Trump’s policies are unlawful and will cause irreversible harm if not blocked.
Legal experts say the judicial scrutiny is wide-ranging. The 46 cases where judges temporarily blocked Trump policies involved 39 judges appointed by five presidents, according to Vladeck. Nine of the judges were appointed by Republicans, he said.
“Substantively, we have a president running roughshod over existing legal constraints to a degree we’ve never seen before,” Vladeck told the Senate Judiciary Committee during a hearing on Wednesday.
Paul, the Northeastern professor, compared the unusual number of civil cases to the unprecedented criminal charges that Trump faced as a former president in four cases between his two terms.
Trump was convicted of falsifying business records in his New York state hush money case, which he has appealed. He faces election racketeering charges in Georgia, but the case is paused while he pushes to remove the district attorney and he is unlikely to be prosecuted while serving as president. Two federal cases − accusing him of election interference and mishandling classified documents − were dropped after he won the election under longstanding Justice Department policy against prosecuting a sitting president.
“He would say, ‘No president has ever been prosecuted like this before,'” Paul said. “He’s right. The reason that that was true was because no president had ever broken the law like he did before.”
Trump has argued as president that judges shouldn’t stand in his way.
“No District Court Judge, or any Judge, can assume the duties of the President of the United States,” Trump said in a social media post March 21. “Only Crime and Chaos would result.”
District judges have temporarily blocked Trump policies nationwide
In scores of cases during Trump’s first term − and continuing this year in his second − federal judges in a single state or smaller district blocked Trump policies nationwide, a relatively recent phenomenon and one that House and Senate Republicans held hearings on this week to block.
Samuel Bray, a law professor at the University of Notre Dame, said the first nationwide injunction from a district court judge appeared in 1963 but the option gained widespread notoriety since blocking an Obama administration immigration policy in 2015.
Among the nationwide injunctions against presidential administrations since 2001, two-thirds have come against Trump, according to a 2024 Harvard Law Review article. Bush faced six, Obama faced 12, Joe Biden faced 14 and Trump faced 64 in his first term.
At least another 17 nationwide injunctions have stacked up against Trump during the first two months of his second term, according to the nonpartisan Congressional Research Service.
“It is not just unusual. It is unprecedented,” Chris Mattei, a former federal prosecutor now practicing at Koskoff, Koskoff & Bieder, told USA TODAY. “Generally, it is a very high bar for plaintiffs to get injunctive relief. The fact that so many temporary restraining orders and injunctions have been granted demonstrates that the administration has been brazen in its lawlessness.”
Trump and his allies have argued judges appointed by Democrats are trying to thwart his agenda.
“Unlawful Nationwide Injunctions by Radical Left Judges could very well lead to the destruction of our Country!” Trump said on social media March 20. “These people are Lunatics, who do not care, even a little bit, about the repercussions from their very dangerous and incorrect Decisions and Rulings.”
Partisan divide over urgently blocking Trump agenda
Senate and House Republicans are debating legislation to prevent judges from blocking administration policies for anyone not involved in a specific lawsuit.
“Nationwide injunctions are an abuse of power,” said Sen. Ted Cruz, R-Texas. Lawmakers need “to rein in this abuse of power from these unelected, radical judges who are trying to overturn the election because they disagree with what the voters decided,” he said.
“We’re facing a separation of powers issue,” said Sen. Eric Schmitt, R-Mo. “This is one way it plays out.”
But Democrats argued that eliminating the option could lead to confusing results, such as a state-by-state patchwork of rulings on issues as important as who is a citizen.
“The effort to do away with this singularly vital tool at this time would be disastrous for the country,” said Sen. Adam Schiff, D-Calif.
For example, Trump ordered the government to no longer grant citizenship to children born to migrants who are in the U.S. without legal authorization. Three federal judges in three states blocked the policy, which U.S. District Judge John Coughenour in Seattle called “blatantly unconstitutional”, for violating the 14th Amendment. Appeals courts upheld those rulings. The cases cover 22 states, two advocacy groups and seven individuals but the nationwide injunctions potentially cover tens of thousands of children born each year.
Trump has appealed all three under emergency requests to the Supreme Court.
Bray, the Notre Dame professor who called nationwide injunctions a scourge, said the birthright cases were handled correctly. Vladeck said it typically takes cases three years to reach a decision at the high court. Without a nationwide injunction, children born to migrants without authorization in a district where Trump’s policy was blocked would be citizens while children born elsewhere could face deportation.
“Do we really think that parents should have to challenge that policy one child at a time?” Vladeck asked. “I think it’s worth underscoring the human consequences.”
What are the emergencies?
The five Venezuelan immigrants identified only by their initials in court documents didn’t know when Trump would invoke the 18th century’s Alien Enemies Act when they filed an emergency lawsuit to block their removals in what the judge called the “wee hours” of 1:12 a.m. on March 15.
That 1798 law allowed Trump to speed the deportation of alleged members of the crime gang Tren de Aragua without court hearings. Presidents had previously invoked the law written when John Adams was in the White House only during wars − the War of 1812, World War I and World War II − against enemy countries rather than a crime gang.
Trump had already declared Tren de Aragua a foreign terrorist organization. He signed the invocation of the Alien Enemies Act without fanfare on March 14 and it went into effect when it was published at 3:35 p.m. on March 15.
Between those times, Chief U.S. District Judge James Boasberg in Washington D.C., temporarily blocked their deportation that Saturday while the case is litigated. He later expanded his order to cover everyone facing potential deportation under the Alien Enemies Act until the people targeted have a chance to deny membership in Tren de Aragua.
But that Saturday evening, two flights took off from Harlingen, Texas, with alleged members of Tren de Aragua on board. El Salvador’s President Nayib Bukele said the flights delivered 238 alleged members of Tren de Aragua and 23 alleged members of MS-13 to a notorious prison in his country.
The Trump administration asked the Supreme Court on March 28 to immediately remove Boasberg’s block on deportations by arguing the president controls the country’s sensitive national-security operations.
“The Constitution supplies a clear answer: the President,” acting U.S. Solicitor General Sarah Harris wrote the court. “The republic cannot afford a different choice.”
Fired workers seek emergency relief
Among several cases challenging the firing of federal workers, one that already has reached the Supreme Court seeks to return 16,000 probationary workers from a half-dozen agencies. U.S. District Judge William Alsup in San Francisco ordered the workers reinstated by ruling the Office of Personnel Management had no authority to fire the workers. The 9th U.S. Circuit Court of Appeals upheld the ruling.
“OPM does not have any authority whatsoever, under any statute in the history of the universe, to hire or fire any employees, but its own,” Alsup wrote.
Justice Department lawyers urged the Supreme Court to overturn the judge’s order by arguing Alsup hijacked the relationship between the government and its workforce “on the flimsiest of grounds and the hastiest of timelines.”
“This Court should stop the ongoing assault on the constitutional structure before further damage is wrought,” Harris, the Trump administration’s top lawyer for Supreme Court fights, told the justices on March 24.
Transgender Navy officer misses surgery because of Trump order
Transgender troops fighting to remain in the military provided one of the starkest examples of the urgency of court decisions.
Navy Petty Officer 3 Class Audrie Graham, 27, who serves at Naval Air Station Oceana in Virginia, was in a hospital gown, hooked up to an IV with marks on his chest in preparation for a double-mastectomy scheduled at 9:30 a.m. on Feb. 5, according to his unchallenged statement to the court. After the preparation, the transgender man waited more than an hour for the next step at the Naval Medical Center in Portsmouth − while doctors learned of the new policy.
“Finally, our surgeon returned and told us that she had ‘unfortunate news,’” Graham said in the court statement. “She told us that because of this order, Tricare, the military health insurer, would no longer cover my surgery. I had my IV removed and had to change back into my regular clothes and leave the hospital without having received the medically necessary surgery that I had waited over a year for.”
U.S. District Judge Ana Reyes in Washington, D.C., blocked the ban but put her ruling on hold while the case is appealed. Government lawyers asked the D.C. Circuit Court of Appeals in an emergency appeal Tuesday to continue blocking Reyes’ order while they try to overturn it.
How soon will the Supreme Court resolve the disputes?
The Supreme Court sets no deadlines for reaching decisions. But answers could come sooner than the customary years-long wait if the justices decide to lift the temporary restraints from lower courts on Trump’s policies while the cases are litigated.
Vladeck nicknamed the shortcut method the “shadow docket” for decision-making based on written filings rather than full briefings and oral arguments. Paul compared it to seeking urgent medical treatment in an emergency room rather than scheduling a procedure in the future.
“In this context, you go to an emergency room because if you don’t get treatment right away, something bad could happen,” said Paul of Northeastern University. “That’s the same thing that’s being argued here, that if the court doesn’t step in right away, by the time they get around to hearing a full case, it’ll too late to do any good.”