Hello and welcome to the seventh post of Talking Points! While it is true that all Presidential Administrations find themselves frequently in court, facing legal challenges to their policies, the Trump Administration has been unusually combative. Indeed, they have called for the impeachment of James Boasberg, Chief Judge of the United States District Court for the District of Columbia, after he ordered the Administration to cease its deportation of undocumented Venezuelan immigrants under the Alien Enemies Act of 1798, an order which was defied. They claim this on the basis that the Judicial Branch cannot restrict the rightful power of the Executive Branch to execute the laws. Therefore, we must assess what the power of the Judicial Branch is toward the Executive Branch, the degree to which Presidents have their power limited by the Judicial Branch, and why the Trump Administration is unusual in the number of legal challenges it has faced.

The power of federal Judges to terminate laws and Presidential actions on the basis of being unconstitutional, is known as Judicial Review. This power, although not in the Constitution, was established as a cornerstone of Constitutional law by the early Supreme Court case of Marbury v. Madison. To simplify a complex story, outgoing President John Adams had appointed a number of his supporters to judicial positions, including William Marbury. The incoming President, Thomas Jefferson, ordered his Secretary of State, James Madison, not to deliver these commissions. Marbury sued Madison, seeking to force him to deliver these commissions. In his majority opinion, Chief Justice John Marshall agreed that Marbury had a right to his commission. However, he refused to order Madison to deliver it, because the law the case was being heard under, conflicted with the Constitution, and as such, was overturned. Effectively, this case established that the laws Congress can pass are limited by the Constitution, and can be struck down by the federal judiciary, a process we now call Judicial Review.

Judicial Review is something that Presidents and their Administrations must frequently deal with. It is common for their political opponents to challenge their actions on Constitutional ground. Such plaintiffs frequently include the states whose governorships are held by the party opposite to the sitting President and special interest groups who are ideologically opposed to the sitting President. As the center of American administrative law, these lawsuits are typically filed in the United States District Court for the District of Columbia, a court which has jurisdiction only over Washington DC. Furthermore, should the losing party in the case wish to pursue the case they can file an appeal in the United States Court of Appeals for the District of Colombia Circuit. Finally, if the losing party disagrees with the appeal, they can request it to be heard by the Supreme Court, who if they hear it, will be the final word. All this is to say that legal challenges to Presidential actions are normal and the processes that deal with them are well understood.

Currently, according to the litigation tracker at Just Security, there are currently 135 lawsuits against the Trump administration, despite Trump being President only 63 days. We can contrast this with the number of lawsuits against the entirety of the Biden administration. Although I cannot find an exact number for the lawsuits filed against the Biden administration, however, according to Ballotpedia, there were 133 multi-state lawsuits throughout the entirety of the Biden administration. Admittedly, this number does not account for the total number of lawsuits against the Biden administration, but it does indicate that the Trump administration has experienced far more litigation than the Biden administration. Indeed, while the Biden administration would not generally attack Judges that have ruled against it, the Trump administration has. For example, Trump has repeatedly attacked James Boasberg, the federal judge involved in a deportation lawsuit.

In mid-March, Donald Trump invoked the Alien Enemies Act, a law from 1798 which allows the immediate deportation of any immigrant found to be engaged in war against the United States. Using this basis, he argued that a state of War existed between the United States and Tren de Aragua, a Venezuelan gang, and therefore the United States was justified in engaging in their immediate removal. He arranged for several hundred Venezuelan immigrants, supposedly members of this gang, to be sent to mega-prisons in El Salvador, without any form of due process. Seeking to prevent this, several of the immigrants filed a lawsuit against the Trump administration, overseen by James Boasberg, chief judge of the United States District Court for the District of Colombia. Rejecting Trump’s arguments, Boasberg ordered a halt to the deportations. Despite this order, the deportations continued. This represents one of the only known cases of a President defying a court order.

By and large, the orders from a federal court are enforced and obeyed by the President and their administration. The only authority the federal judiciary has to enforce its rulings is the United States Marshals Service, a law enforcement agency which is insufficient to enforce court orders. However, the vast majority of Presidents have respected these rulings, even when unfavorable for their administration. Indeed, the only President to outright ignore a court order was President Abraham Lincoln, as he continued his removal of habeas corpus towards suspected Confederate sympathizers, imprisoning them without due process, despite an order to cease by the Supreme Court. Although potentially justifiable under the circumstances, I think this speaks to just how strange it is for a President to refuse to enforce a court order, especially when it is against an action of their administration. This is not to say that court order cannot be challenged, in fact outcomes negative to the administration are regularly appealed by the administration.

Indeed, rulings by District Court judges, like Boasberg’s ruling can be appealed to the appellate courts. For example, that particular ruling would be appealed to the United States Court of Appeals for the District of Colombia Circuit, a court that exists exclusively to hear appeals from the United States District Court for the District of Columbia. Under such an appeal, a panel of judges would examine the process by which Boasberg ruled, the arguments of government lawyers, and the arguments of the immigrant’s lawyers, and on these bases, make a ruling. Furthermore, should the appellate ruling be unacceptable to either the government or the immigrants, they could appeal for the case to be heard by the Supreme Court. If the Supreme Court were to accept hearing the case, they would issue a final ruling. All of this is to say, is that should a President disagree with a District Court ruling, there is a well understood and fair process to potentially have the ruling overturned, and a more favorable ruling in its place.

One of the most important pieces of legislation during the Obama administration was the Affordable Care Act, a piece of legislation which imposed a penalty on those without health insurance, known as the individual mandate. On the basis of this element, Florida filed a lawsuit against the Department of Health and Human Services in the United States District Court for the Northern District of Florida, where Judge Roger Vinson ruled that the individual mandate was unconstitutional, and could not be removed from the larger act, ruling the Affordable Care Act unconstitutional. After this, the government appealed the ruling in the United States Court of Appeals for the 11th Circuit, where three judges ruled that while the individual mandate was unconstitutional, it could be removed from the Affordable Care Act, and as such, the Affordable Care Act was reinstated. Finally, the government appealed this ruling to the Supreme Court, who ruled that the individual mandate was constitutional as it was a tax, which Congress is authorized to legislate.

I would contend that this case represents the model by which an administration should deal with a court ruling they disagree with. If it is the case that the Trump administration was authorized in its actions to deport the Venezuelan immigrants, it can make the arguments to the Appellate Court, and then potentially the Supreme Court. Otherwise, if it begins to pick and choose what court orders to enforce and not to enforce, the power of the federal judiciary is diminished, as it lacks the power to enforce its ruling itself. If this were to be the case, then the only other institution capable of checking and balancing the Executive branch would be Congress. This would go against centuries of precedent, limiting the checks and balances that exist on the Executive branch. Therefore, I think it is imperative that the Trump administration obeys court orders as long as they stand, in order to preserve the power of the Judiciary, and that if it disagrees with its rulings, to rely on its process, as virtually all other Presidents have done.