Can We Trust Courts to Stop Trump’s Lawlessness?

The harms that Trump is causing — to our people, our polity, our politics, and so much more — go well beyond any possible violations of law.

Just following the mass of litigation against the second Trump Administration can be a full-time job.

One leading tracker currently identifies 244 distinct cases filed against the administration. Many of these cases have been through multiple stages: temporary restraining orders, preliminary injunctions, summary judgment motions, enforcement and contempt proceedings, and appeals (and requests for stays) at each stage — in a number of instances going all the way to the Supreme Court. And Trump’s been back in office for a mere four months!

Even the past weeks have been dizzying. On May 16, the Supreme Court issued its latest ruling in A.A.R.P. v. Trump. (The letters “A.A.R.P.” here are the initials of the person who filed the lawsuit, not the well-known advocacy organization for older Americans.) The Court seemed to take a strong stand against Trump’s mass deportations. It issued an injunction preventing the deportation of immigrants under the Alien Enemies Act without due process, and it held that “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.”

Yet on May 19 — the very next business day — the Court issued an order that had the effect of removing “Temporary Protected Status” from over 300,000 Venezuelan immigrants, thus clearing an obstacle to their deportation. As one leading immigration lawyer noted, “This is the largest single action stripping any group of non-citizens of immigration status in modern U.S. history. That the Supreme Court authorized it in a two-paragraph order with no reasoning is truly shocking.” Only Justice Ketanji Brown Jackson noted her dissent.

And on May 22, the Court issued an order that all but overrules a 90-year-old precedent upholding statutes that protect the members of independent agencies from being fired at will by the President. The Court’s order aggressively supported Trump’s efforts to eliminate independent sources of authority within the government who might stand up to him.

All this came on the heels of the Supreme Court’s May 15 oral argument on Trump’s executive order to eliminate birthright citizenship. There, several justices expressed concern about federal district courts having power to issue nationwide injunctions, even as Justice Elena Kagan highlighted how the administration could exploit the lack of a nationwide injunction to avoid all Supreme Court review of that clearly unconstitutional order. All at the same time that Kilmar Abrego Garcia heads to his third month of illegal imprisonment in a torture camp in El Salvador, while a federal judge ineffectually “upbraids” the administration for defying her orders.

In the early months of the second Trump Administration, Trump, Elon Musk, and their cronies have trampled over basic due process rights, disregarded the statutory independence of government watchdogs, targeted dissenting speech and civil society institutions, engaged in mass firings of federal workers, refused to spend money appropriated by Congress, unilaterally shut down agencies created by law, and so much more. Each time, people and organizations who have experienced harm have run to court to challenge the administration’s actions.

Understandably so. The Trump Administration’s actions deeply threaten core constitutional values. And we have long been taught that it is the courts who stand by to enforce the Constitution. As Justice Hugo Black somewhat lyrically put it, “Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.”

But how well have the courts held Trump to account? The record of the last four months is mixed. On some occasions, courts have enjoined the administration’s abuses — although many of their injunctions have been stayed or overturned on appeal. Other times, the courts seem to have been looking for ways to avoid intervening.

It is still early days. The cases so far have addressed only the preliminary stages, without full proceedings and appeals. The final chapters of the story of litigation against the second Trump Administration will not be written for some time.

Yet it is well past time to recognize that we can’t count on the courts to stop all, or even most, of Trump’s abuses — even those abuses that violate the best understanding of the law. I don’t mean simply to repeat the now-trite observation, beloved of headline writers (and one that I’ve offered myself), that “the courts won’t save us.” Of course they won’t. The harms that Trump is causing — to our people, our polity, our politics, and so much more — go well beyond any possible violations of law. The ultimate cure for Trumpism is political–to build and maintain a new coalition dedicated to serving the common good through the institutions of a democratic republic. I commend Rep. Jamie Raskin’s extended comments from a few months ago on this point.

But even if we don’t expect the courts to “save us,” many of us expect the courts to hold the President accountable to following the law, and particularly the Constitution. My key point is that we can’t even count on the courts to reliably serve that function.

How can that be? Didn’t we learn in high school civics class that the courts ensure that the other branches follow the Constitution? Didn’t Chief Justice John Marshall say that it “is emphatically the province and duty of the judicial department to say what the law is”? What about Justice Black’s “havens of refuge?”

The civics-class view simply doesn’t describe how our nation’s courts work — or have ever worked. The federal courts don’t tell us what the Constitution means in the abstract; they decide discrete cases between particular parties. Judges have long taken the view, expressed by then-Justice Antonin Scalia back in 1990, that the “case-by-case approach” is the “normal mode of operation of the courts,” and that it bars individuals from seeking “wholesale improvement” of government programs “by court decree, rather than in the offices of the Department or the halls of Congress.”

In many of the cases in which Trump has acted unlawfully, there is no single, discrete decision that demonstrates the violation. Rather, the violation emerges from a very large series of decisions — mass firings of employees, mass terminations of grants, widespread failures to spend appropriated money. The administration may say that each of these decisions was made on its own merits, but the fact that the government made the same decision over and over belies that assertion; the mass decisionmaking itself demonstrates that the administration was unlawfully refusing to carry out the programs created and funded by Congress.

Many of the cases challenging Trump Administration actions are indeed extraordinary. But that is because of the extraordinary nature of the illegality. We simply haven’t seen other presidents engaging in mass firings of civil servants, across-the-board spending freezes, and unilateral shutting down of the work of entire agencies, offices, and programs.

But judges are institutionally conservative by nature. We can expect most of them to insist on what I’ve called ordinary judging, even in extraordinary times. That’s true even of judges who don’t share the politics of the Trump Administration. They may fear a loss of legitimacy if they rule against Trump and he defies their orders. And they may feel that if they do end up in a face-off with Trump, they’ll be on stronger ground if they have meticulously followed longstanding judicial practice.

The fear of a loss of legitimacy may seem especially acute given that many of Trump’s most prominent unlawful actions are unlawful precisely because they trample on the constitutional prerogatives of the legislative branch; yet Congress has taken no conspicuous action to stand up for itself. As then-Justice Robert Jackson emphasized when voting to invalidate President Truman’s attempt to seize the nation’s steel mills during the Korean War, judges will “have no illusion that any decision” by the courts “can keep power in the hands of Congress if it is not wise and timely in meeting its problems.” The courts “may say” that the relevant power is for Congress, not the President, to exercise, but that’s only words: “only Congress itself can prevent power from slipping through its fingers.” If Congress isn’t standing up for its prerogatives, we can’t expect judges to stick their necks out on its behalf. This is especially true given the escalation of violent threats against judges who rule against Trump.

And it’s important to recall that the courts have long been not just institutionally but politically conservative. For all the times that courts have protected Justice Black’s “non-conforming victims of prejudice and public excitement,” there are many more instances in which the courts have let that prejudice and public excitement have its way — and even helped it along.

The current Supreme Court is extremely politically conservative. Although some key fault lines exist among the majority bloc, the basic fact is that six of the nine sitting justices are very conservative Republican appointees. By and large, these justices can be expected to be sympathetic to what Trump is trying to do, even if they may find the sloppy and ham-handed way he is doing it a bit too much. Remember that this is the same Supreme Court that rejected state efforts to enforce the Fourteenth Amendment’s Insurrection Clause to keep Trump off the 2024 ballot, the same Court that issued an alarmingly broad opinion granting immunity to Trump for his actions while in office. And even before Trump was able to appoint Justices Brett Kavanaugh and Amy Coney Barrett, the Court upheld the only superficially sanitized third iteration of his Muslim Ban.

So what can we expect from the courts during the second Trump Administration? Much the same as what we saw during the first Trump Administration. In a few especially egregious cases, we can expect the courts to invalidate major administration initiatives. In the first Trump Administration, the Supreme Court invalidated Trump’s efforts to revoke the DACA program and to add a citizenship question to the census; in the second, we can expect the Court to overturn Trump’s effort to eliminate birthright citizenship, to impose some due process limitations on mass deportations, and to invalidate some of Trump’s most obviously vindictive and unconstitutional acts targeting particular prominent institutions. (The Executive Orders targeting particular law firms will not survive, I predict, nor will the administration’s overweening and procedurally faulty efforts to trample on Harvard’s academic freedom.)

But we should equally expect the courts to allow many of Trump’s abuses to proceed. I might put Trump’s mass firings, his refusals to spend appropriated funds, and his taking a chainsaw to congressionally created agencies in this category. (Note that these are the cases that most depend on mass proof, and that most significantly seek to enforce congressional prerogatives.) The Supreme Court might say that some of these actions were actually legal, though I doubt it. More likely, they’ll find some procedural way out of a confrontation with Trump. They’ll say the plaintiffs sued in the wrong court, or that they should have first pursued administrative remedies (often in agencies that Trump has also kneecapped), or that they’re the wrong plaintiffs to have brought the suit.

Either way, the opponents of Trump can expect to win only a limited number of judicial victories — and that the courts will more often try to avoid taking on Trump, even in cases in which what he is doing is illegal.

The question, then, is what to do about it. Should those of us who oppose Trump’s abuses avoid the courts? Absolutely not. Litigation can provide an essential lifeline to individuals who are at immediate risk. That’s precisely what it’s done in the A.A.R.P. case for people on the brink of illegal deportation to overseas hellholes. Litigation can slow down Trump’s abuses and buy time for political organizing and mobilization to put pressure on the Executive and Legislative Branches — and to exert power at the next election. Litigation can even provide a focal point for that mobilization. Judicial hearings call public attention to the administration’s abuses. Individuals can be encouraged to attend those hearings and provide assistance to fellow community members involved in the proceedings. And the litigation process can elicit information from the government that will help fill out the public picture of just what Trump and his henchmen are doing.

But we have to see the courts as just one part of a broader strategy to respond to Trump’s violations of law. We have to use litigation, and the information and mobilization that flows from litigation, as a tool to organize those opposed to Trump’s abuses, raise the salience of important issues, and put pressure on Congress and other institutions to stand up to Trump. And we have to resist the reflex to treat the Supreme Court’s statements as the final word on what the Constitution means. We all have an obligation to follow court orders — and we need to insist that Trump and his administration comply with that obligation. But the meaning of the Constitution is something that belongs not to the Court but to “We the People.” As I have argued, “The litigation against Trump’s abuses is an opportunity to catalyze support for a truly democratic understanding of our Constitution. And we need to understand it as part of a long-term process of strengthening our constitutional culture, not just a short-term effort to stop immediate abuses.”

Samuel R. Bagenstos is Arlene Susan Kohn Professor of Social Policy at the Gerald R. Ford School of Public Policy and Frank G. Millard Professor of Law at the University of Michigan Law School. He has served in both the Biden and Obama administrations.