Trump tests US laws with fast-paced executive orders, can judiciary bind his hands?

Since assuming offince on January 20, US President Donald Trump has wielded unprecedented powers. He has not just made maximalist interpretations of his executive powers but has bulldozed longstanding legal precedents and even constitutional provisions.

For one, even as the Constitution of the United States clearly states that children born in the United States, irrespective of the immigration status of their parents, will become US citizens, Trump issued an executive order to end birthright citizenships. This order is among a clutch of executive actions that have been paused by a number of federal courts as watchdogs and Democratic Party-led states have turned to courts to put a check on Trump’s powers.

As the Republican Party, which is now Trump’s fiefdom, controls both the chambers of Congress, the legislature has essentially ceased to be an independent branch of the government and has turned into a rubber-stamp body. The Supreme Court too is in Trump’s pocket as it has a 6:3 conservative majority with three of the six conservative judges appointed by Trump in his first term (2017-21).

The hope with federal courts

Independent watchdogs and Democrats-run states have challenged a number of Trump’s executive actions.

Federal judges have paused a number of these actions. The paused actions include:

• End to birthright citizenship to children born to undocumented immigrants on US soil

• Transferring transwomen prisoners to male-only prisoners

• Potentially exposing identities of FBI personnel who investigated January 6, 2021 Capitol Hill attack

• Forcing federal employees to take up the resignation scheme

• Freezing as much as $3 trillion in federal aid

• Sending detained Venezuelans to Guantanamo Bay

Overall, watchdogs, unions, and Democrats-run states have filed more than 40 lawsuits against Trump’s actions, according to The New York Times.

Unlike 2017, there is no Congressional oversight or scruitiny over Trump’s actions, so courts are the only avenue where there is little hope.

Judges have said that at least some actions of Trump are completely against the Constitution. Two judges in separate orders have blocked Trump’s ban of birthright citizenship. One of them, Judge John C Coughenour of the Western District of Washington, said that if the executive branch wanted to change the provision, it would need to amend the Constitution.

“The constitution is not something with which the government may play policy games. If the government wants to change the exceptional American grant of birthright citizenship, it needs to amend the Constitution itself,” said Coughenour.

Regarding Trump’s actions, Oregon’s Attorney Feneral Dan Rayfield told The Times that “no president should be able to rewrite 120-plus years of interpretation of the Constitution with a stroke of a pen”.

Are they walking into Trump’s trap?

While Democrats and watchdogs have mounted legal challenges to Trump’s executive actions, Trump and his allies have challenged the legitimacy of the courts.

They have said that everything that the president does is correct as he has been elected by the people. While Trump’s critics, and even courts, have questioned the constitutionality of Trump’s actions, his allies have dubbed judicial interventions as courts overstepping into what they say to be the rightful domain of the presidency.

Harrison Fields, a White House spokesman, proved such a line of thought right. He told The Times that any legal challenge to Trump’s executive actions is “nothing more than an attempt to undermine the will of the American people”.

“Every action taken by the Trump-Vance administration is fully legal and compliant with federal law,” said Fields in a statement.

In a post on X, Vice President JD Vance said that “judges aren’t allowed to control the executive’s legitimate power”. In a separate post that he rehsared, a Trump-supporter lawyer had said that courts do not have any enforcement powers. The resharing of the post by Vance indicates that the Trump administration might be looking forward to simply defying court orders as courts do not have a police of their own to enforce their orders.

“What if the judicial decision is lawless? A key component of the constitutional framework is judicial modesty, which is backed up by the fact that the judiciary has nothing to compel obedience, except its credibility,” the post reshared by Vance said.

Moreover, The Times reported experts as saying that it appears that Trump wants legal challenges to be mounted against his actions. His plans appears to be to escalate these challenges to the Supreme Court, which is widely believed to be in Trump’s pocket, where he can get his desired ruling.

By escalating these issues to the Supreme Court and getting the pliant judges to do his bidding, Trump would break decades and centuries of precedents and turn his constitutionally shaky actions into judicial precedents and court-backed policy.

“The administration seems to have wanted challenges that consume a ton of resources — of opponents, courts and public attention — even as members of the administration know the provisions do not square with the law that exists,” Judith Resnik, a professor at Yale Law School, told The Times.