Presidential Power vs. Judicial Review: A Growing Conflict Under Trump

The Trump presidency has been marked by an unprecedented number of legal challenges, pushing the boundaries of the separation of powers and sparking a debate about the role and authority of the judiciary. With lawsuits against President Trump climbing well into the triple digits within his first few months in office, questions are mounting regarding the checks and balances between the executive and judicial branches. Specifically, supporters are questioning what actions Congress and the White House can take to curb what they perceive as overreach by the courts.

Central to this debate is the notion of "activist judges," a label frequently applied by Trump supporters to judges who have ruled against the administration. Even Supreme Court Justice Amy Coney Barrett, a Trump appointee, has faced this criticism after siding with Chief Justice John Roberts and liberal justices to uphold a lower court decision regarding USAID payments.

Recent confrontations highlight the tension. The White House challenged a federal judge’s order blocking the administration from using a 1798 wartime law to deport Venezuelan nationals, including alleged members of the violent gang Tren de Aragua. The situation escalated when U.S. District Court Judge James Boasberg ordered the Trump administration to turn around any plane carrying deported individuals. The administration seemingly defied this order, sending hundreds of deportees to El Salvador.

White House press secretary Karoline Leavitt defended the action, claiming the plane had already left U.S. airspace and asserting the administration should not be bound by the judge’s order. She characterized the order as lacking a lawful basis and stated that "a single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil."

Judge Boasberg has ordered the parties to return to court to provide more information about what happened. This open defiance underscores the executive branch’s willingness to challenge judicial opinions it disagrees with, a move applauded by some members of Congress.

Rep. Andy Ogles, R-Tenn., criticized U.S. District Judge Amir Ali, calling him a "Biden-appointed, woke judicial activist" after Ali, following Supreme Court guidance, ordered the government to pay nearly $2 billion in "unlawfully" restricted USAID funds. Sen. Mike Lee, R-Utah, echoed this sentiment, suggesting that some judges’ rulings against the Trump administration "might warrant removal."

While Congress does possess the power to impeach and remove federal judges for misconduct, corruption, or other offenses, such a move requires a two-thirds vote in the Senate, making it unlikely given the current political landscape.

Many judges, on the other hand, have expressed concerns about the sweeping nature of Trump’s executive orders, which have called for the gutting of government personnel, halted billions in foreign aid, and attempted to unilaterally end birthright citizenship. U.S. District Court Judge Beryl Howell, in a court order reinstating a member of the National Labor Relations Board, asserted that "an American President is not a king – not even an elected one – and his power to remove federal officers and honest civil servants like plaintiff is not absolute."

Constitutional scholars attribute these separation of powers conflicts to the United States Congress’s lack of action. Article I empowers Congress to "make all Laws which shall be necessary and proper" for the executive branch to function. However, with lawmakers often prioritizing re-election campaigns and partisan battles over enacting legislation, a vacuum is created that is filled by executive action, which then faces judicial scrutiny.

Data shows that the 118th session of Congress, which ended in December, was the least productive since at least the 1980s, passing slightly fewer than 150 bills. This legislative inactivity has led recent presidents, including Barack Obama and Joe Biden, to rely on executive orders and actions to advance their agendas.

According to the Code of Federal Regulations and the Federal Register, a president’s executive order can only be revoked or modified by the president or via the legislative branch if the president was acting on authority granted by Congress. In the Trump era, lawsuits have frequently alleged that the president has acted without Congressional authorization.

In the absence of clear laws, judges wield significant power to interpret the lawfulness of executive actions. Critics of the judiciary have advocated for Congress to curtail this power by altering the size or structure of lower courts. Harvard Law professor Adrian Vermeule suggested that Congress could cut off funding for judicial law clerks and other essential legal personnel, emphasizing the legislative branch’s "power of the purse."

However, given Congress’s struggles to pass legislation, including infighting that has delayed recent spending bills, it is unclear whether lawmakers could unite behind such a measure.

The White House’s options are more limited by the Constitution. While the president can appoint federal judges, they cannot be fired. The executive branch is also responsible for enforcing court rulings and may either slow-roll or de-prioritize decisions the president disagrees with. However, such actions would violate historical deference to the courts.

Judge Ali, after the Supreme Court upheld a district court’s decision ordering the Trump administration to pay nearly $2 billion in owed payments to USAID contractors, stated that the Trump administration likely exceeded its constitutional authority in attempting to block the payments. He argued that "the executive has unilaterally deemed that funds Congress appropriated for foreign aid will not be spent" and that the executive "not only claims his constitutional authority to determine how to spend appropriated funds, but usurps Congress’ exclusive authority to dictate whether the funds should be spent in the first place."

It remains unclear what remedies the White House would have to challenge this decision, short of appealing certain portions to the Supreme Court.

Mike Davis, the founder and president of the Article III Project (A3P), argued that as president, Trump "is exercising Article II power to take care that our federal laws are faithfully executed." Davis, a former Supreme Court clerk for Justice Neil Gorsuch, stated that this includes "weeding out waste, fraud, and abuse."

The ongoing conflict between the executive and judicial branches under the Trump presidency raises fundamental questions about the balance of power in the American system of government. With the courts serving as a critical check on executive action, the debate over the scope and limits of judicial power is likely to continue to be a central theme of American politics.