Trump’s first-year actions sparked a legal war and rebukes from judges
A few months into President Trump’s second term, federal appeals court Judge J. Harvie Wilkinson III — a conservative appointee of President Reagan — issued a scathing opinion denouncing what he found to be the Trump administration’s unlawful removal of Kilmar Abrego Garcia to his native El Salvador, despite a previous court order barring it.
“The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done,” Wilkinson wrote. “This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Two months later, U.S. District Judge William G. Young, also a Reagan appointee, ripped into the Trump administration from the bench for its unprecedented decision to terminate hundreds of National Institutes of Health grants based on their perceived nexus to diversity, equity and inclusion initiatives.
Young ruled the cuts were “arbitrary and capricious” and therefore illegal. But he also said there was a “darker aspect” to the case that he had an “unflinching obligation” to call out — that the administration’s actions amounted to “racial discrimination and discrimination against America’s LGBTQ community.”
“I’ve sat on this bench now for 40 years. I’ve never seen government racial discrimination like this,” Young said, explaining a decision the Supreme Court later reversed. “Have we fallen so low? Have we no shame?”
In the year since an aggrieved and combative Trump returned to the White House, his administration has strained the American legal system by testing and rejecting laws and other long-standing policies and defending those actions by arguing the president has a broad scope of authority under the U.S. Constitution.
Administration officials and Justice Department attorneys have argued that the executive branch is essentially the president’s to bend to his will. They have argued its employees are his to fire, its funds his to spend and its enforcement powers — to retaliate against his enemies, blast alleged drug-runners out of international waters or detain anyone agents believe looks, sounds and labors like a foreigner — all but unrestrained.
The approach has repeatedly been met by frustrated federal judges issuing repudiations of the administration’s actions, but also grave warnings about a broader threat they see to American jurisprudence and democracy.
When questioning administration attorneys in court, in stern written rulings at the district and appellate levels and in blistering dissents at the Supreme Court — which has often backed the administration, particularly with temporary orders on its emergency docket — federal judges have used remarkably strong language to call out what they see as a startling disregard for the rule of law.
Legal critics, including more than a hundred former federal and state judges, have decried Trump’s attacks on individual judges and law firms, “deeply inappropriate” nominations to the bench, “unlawful” appointments of unconfirmed and inexperienced U.S. attorneys and targeting of his political opponents for prosecution based on weak allegations of years-old mortgage fraud.
In response, Trump and his supporters have articulated their own concerns with the legal system, accusing judges of siding with progressive groups to cement a liberal federal agenda despite the nation voting Trump back into office. Trump has labeled judges “lunatics” and called for at least one’s impeachment, which drew a rare rebuke from Chief Justice John G. Roberts Jr.
After District Judge Brian E. Murphy temporarily blocked the administration from deporting eight men to South Sudan — a nation to which they had no connection, and which has a record of human rights abuses — Solicitor Gen. D. John Sauer, the administration’s top litigator, called the order “a lawless act of defiance” that ignored a recent Supreme Court ruling.
After District Judge James E. Boasberg began pursuing a criminal contempt investigation into the actions of senior administration officials who continued flights deporting Venezuelan nationals to a notorious Salvadoran prison despite Boasberg having previously ordered the planes turned back to the U.S., government attorneys said it portended a “circus” that threatened the separation of powers.
While more measured than the nation’s coarse political rhetoric, the legal exchanges have nonetheless been stunning by judicial standards — a sign of boiling anger among judges, rising indignation among administration officials and a wide gulf between them as to the limits of their respective legal powers.
“These judges, these Democrat activist judges, are the ones who are 100% at fault,” said Mike Davis, a prominent Republican lawyer and Trump ally who advocates for sweeping executive authority. “They are taking the country to the cliff.”
U.S. District Judge James E. Boasberg began pursuing a criminal contempt investigation into the actions of senior administration officials who continued flights deporting Venezuelan nationals to a notorious Salvadoran prison.
(Valerie Plesch / Bloomberg via Getty Images)
The judges “see — and have articulated — an unprecedented threat to democracy,” said UC Berkeley Law School Dean Erwin Chemerinsky. “They really are sounding the alarm.”
“What the American people should be deeply concerned about is the rampant increase in judicial activism from radical left-wing judges,” said Abigail Jackson, a White House spokesperson. “If this trend continues it threatens to undermine the rule-of-law for all future presidencies.”
“Regardless of which side you’re on on these issues, the lasting impact is that people mistrust the courts and, quite frankly, do not understand the role that a strong, independent judiciary plays in the rule of law, in our democracy and in our economy,” said John A. Day, president of the American College of Trial Lawyers. “That is very, very troubling to anybody who looks at this with a shred of objectivity.”
California in the fight
Last month, California Atty. Gen. Rob Bonta announced his office’s 50th lawsuit against the Trump administration — an average of about one lawsuit per week since Trump’s inauguration.
The litigation has challenged a range of Trump administration policies, including his executive order purporting to end birthright citizenship for the U.S.-born children of many immigrants; his unilateral imposition of stiff tariffs around the world; the administration’s attempt to slash trillions of dollars in federal funding from states, and its deployment of National Guard troops to American cities.
The battles have produced some of the year’s most eye-popping legal exchanges.
In June, Judge Charles R. Breyer ruled against the Trump administration’s decision to federalize and deploy California National Guard troops in Los Angeles, after days of protest over immigration enforcement.
An attorney for the administration had argued that federal law gave Trump such authority in instances of domestic “rebellion” or when the president is unable to execute the nation’s laws with regular forces, and said the court had no authority to question Trump’s decisions.
But Breyer wasn’t buying it, ruling Trump’s authority was “of course limited.”
“I mean, that’s the difference between a constitutional government and King George,” he said from the bench. “This country was founded in response to a monarchy. And the Constitution is a document of limitations — frequent limitations — and enunciation of rights.”
U.S. District Judge Charles Breyer ruled against the Trump administration’s decision to federalize and deploy California National Guard troops to Los Angeles.
(Santiago Mejia / San Francisco Chronicle)
Francesca Gessner, Bonta’s acting chief deputy, said she took Breyer’s remarks as his way of telling Trump and his administration that “we don’t have kings in America” — which she said was “really remarkable to watch” in an American courtroom.
“I remember just sitting there thinking, wow, he’s right,” Gessner said.
The U.S. 9th Circuit Court of Appeals subsequently paused Breyer’s order, allowing the troops to remain in Trump’s control.
In early October, U.S. District Judge Karin J. Immergut barred the deployment of Oregon National Guard troops to Portland, finding that the conditions on the ground didn’t warrant such militarization. The next day, both Oregon and California asked her to expand that ruling to include California National Guard troops, after the Trump administration sent them to Portland in lieu of Oregon’s troops.
Before issuing a second restraining order barring deployments of any National Guard troops in Oregon, a frustrated Immergut laid into the Justice Department attorney defending the administration. “You’re an officer of the court,” she said. “Aren’t defendants simply circumventing my order, which relies on the conditions in Portland?”
More recently, the Supreme Court ruled against the Trump administration in a similar case out of Chicago, finding the administration lacked any legal justification for Guard deployments there. Trump subsequently announced he was pulling troops out of Chicago, Los Angeles and other Democratic-led cities, with California and other states that had resisted claiming a major victory.
Bonta said he’s been pleased to see judges pushing back against the president’s power grabs, including by using sharp language that makes their alarm clear.
U.S. District Court Judge Karin J. Immergut, shown at her 2018 confirmation hearing, barred the deployment of Oregon National Guard troops to Portland.
(Win McNamee / Getty Images)
“Generally, courts and judges are tempered and restrained,” Bonta said. “The statements that you’re seeing from them are carefully chosen to be commensurate with the extreme nature of the moment — the actions of the Trump administration that are so unlawful.”
Jackson, the White House spokesperson, and other Trump administration officials defended their actions to The Times, including by citing wins before the Supreme Court.
Atty. Gen. Pam Bondi said the Justice Department “has spent the past year righting the wrongs of the previous administration” and “working tirelessly to successfully advance President Trump’s agenda and keep Americans safe.”
Sauer said it has won rulings “on key priorities of this administration, including stopping nationwide injunctions from lower courts, defending ICE’s ability to carry out law enforcement duties, and removing dangerous illegal aliens from our country,” and that those decisions “respect the role” of the courts, Trump’s “constitutional authority” and the “rule of law.”
‘Imperial executive’ or ‘imperial judiciary’?
Just after taking office, Trump said he was ending birthright citizenship. California and others sued, and several lower court judges blocked the order with nationwide or “universal” injunctions — with one calling it “blatantly unconstitutional.”
In response, the Trump administration filed an emergency petition with the Supreme Court challenging the ability of district court judges to issue such sweeping injunctions. In June, the high court largely sided with the administration, ruling 6 to 3 that many such injunctions likely exceed the lower courts’ authority.
Trump’s policy remains on hold based on other litigation. But the case laid bare a stark divide on the high court.
In her opinion for the conservative majority, Justice Amy Coney Barrett wrote that universal injunctions were not used in early English and U.S. history, and that while the president has a “duty to follow the law,” the judiciary “does not have unbridled authority to enforce this obligation.”
Supreme Court Justice Amy Coney Barrett accused Justice Ketanji Brown Jackson of pursuing a “startling line of attack” that unconstitutionally aggrandized the powers of judges at the expense of the president.
(Mario Tama / Getty Images)
In a dissent joined by fellow Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote that enforcement of Trump’s order against even a single U.S.-born child would be an “assault on our constitutional order,” and that Barrett’s opinion was “not just egregiously wrong, it is also a travesty of law.”
Jackson, in her own dissent, wrote that the majority opinion created “a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.”
As a result, the president’s allies will fare well, the “wealthy and the well connected” will be able to hire lawyers and go to court to defend their rights, and the poor will have no such relief, Jackson wrote — creating a tiered system of justice “eerily echoing history’s horrors.”
In a footnote, she cited “The Dual State” by Jewish lawyer and writer Ernst Fraenkel, about Adolf Hitler creating a similar system in Germany.
Barrett accused Jackson of pursuing a “startling line of attack” that unconstitutionally aggrandized the powers of judges at the expense of the executive. “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
Jackson questioned why the majority saw a “power grab” by the courts instead of by “a presumably lawless Executive choosing to act in a manner that flouts the plain text of the Constitution.”
What’s ahead?
Legal observers across the political spectrum said they see danger in the tumult.
“I never have been so afraid, or imagined being so afraid, for the future of democracy as I am right now,” Chemerinsky said.
He said Trump is “continually violating the Constitution and laws” in unprecedented ways to increase his own power and diminish the power of the other branches of government, and neither Republicans in Congress nor Trump’s cabinet are doing anything to stop him.
While the Supreme Court has also showed great deference to Trump, Chemerinsky said he is hoping it will begin reaffirming legal boundaries for him.
“Is the court just going to be a rubber stamp for Trump, or, at least in some areas, is it going to be a check?” he said.
Davis said Trump has faced “unprecedented, unrelenting lawfare from his Democrat opponents” for years, but now has “a broad electoral mandate to lead” and must be allowed to exercise his powers under Article II of the Constitution.
“These Democrat activist judges need to get the hell out of his way, because if they don’t, the federal judiciary is gonna lose its legitimacy,” Davis said. “And once it loses its legitimacy, it loses everything.”
Bonta said the Constitution is being “stress tested,” but he thinks it’s been “a good year for the rule of law” overall, thanks to lower court judges standing up to the administration’s excesses. “They have courage. They are doing their job.”
Day, of the American College of Trial Lawyers, said Trump “believes he is putting the country on the right path” and wants judges to get out of his way, while many Democrats feel “we’re going entirely in the wrong direction and that the Supreme Court is against them and bowing to the wishes of the executive.”
His advice to both, he said, is to keep faith in the nation’s legal system — which “is not very efficient, but was designed to work in the long run.”
