The Roberts Court Is Doing Its Job

The Trump administration’s tsunami of executive orders and presidential directives has spawned a tidal wave of litigation. Nearly 400 lawsuits have been filed in federal court against administration actions thus far, resulting in more than 100 decisions blocking or freezing the administration from doing at least some of what it sought to do. Of these, the Trump administration has sought relief from the Supreme Court in only a handful of cases (about two dozen), and has generally prevailed.

The primary reason for the Trump administration’s remarkable success rate in seeking emergency relief from the Supreme Court is that it has been very selective, focusing on cases in which lower courts have exceeded their jurisdiction, prematurely enjoined the administration from taking lawful actions, or otherwise offered relief that was not called for under existing law. And quite tellingly, the Trump administration has not sought high court relief in cases in which its actions would be most difficult to defend, such as its lawless, petty, and vindictive attacks on law firms that have represented Trump critics and other political opponents. 

The Trump administration has been particularly aggressive in its efforts to reorient federal policy and reorganize the federal government. But these intentions and ambitions, even if stated in official documents, are no excuse for lower courts to intervene before an injured party can allege that a specific government action was unlawful. That illegal or consequential action can be anticipated is not sufficient for a federal court to exercise jurisdiction. The fear of presidential overreach is no justification for courts to respond in kind.

For instance, in Trump v. American Federation of Government Employees, the Trump administration sought and obtained a stay of an injunction against an executive order and presidential memorandum directing agencies to develop plans to reduce the federal workforce. The order instructed agencies only to take action “consistent with applicable law,” and there are specific procedures under which federal employees may contest terminations. As eight justices recognized, it was improper for a district court to enjoin the order or its implementation. 

The point here is not that the Trump administration has not engaged in unlawful actions; I believe it has. The point is that courts are not called upon to make universal pronouncements about the lawfulness of a given administration. Rather, their charge is to resolve specific cases in accordance with applicable law when a court has jurisdiction. And this means some lawless administration actions, such as the refusal to enforce the law mandating China’s divestment from TikTok, are difficult to challenge in court. 

The Supreme Court sought to curtail judicial overreach by lower courts in Trump v. CASA. Here, the court rejected the growing practice of district courts issuing “universal injunctions” against the executive branch. This was welcome (if perhaps also overdue).

A “universal injunction” is a court order that applies “universally”—that is, beyond the parties to the case. Until recently, such injunctions were quite rare. Since 2001, however, their use has exploded. There were only six such injunctions entered against the George W. Bush administration, 12 against the Obama administration, and then 64 against the first Trump administration. Prior to CASA, there were more such injunctions issued against the second Trump administration than there were against the Johnson, Nixon, Ford, Carter, Reagan, Bush, and Clinton administrations combined.

The growth of universal injunctions was without legal warrant and allowed activist groups (and state attorneys general) to hamstring presidential initiatives by strategically filing cases in friendly jurisdictions. It is no accident that 35 of the 40 universal injunctions issued against the second Trump administration were issued in just five of the nation’s 94 district courts (and that the lion’s share of such injunctions against the Biden administration were filed within the notably conservative U.S. Court of Appeals for the 5^th Circuit). This was a problem. As Justice Elena Kagan noted in 2022, “it just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through normal process,” and yet that is what the practice allowed before the CASA decision.

In her CASA opinion, Justice Amy Coney Barrett explained that Congress never granted district courts the power to issue such broad relief in ordinary litigation against the federal government. While it is commonly remarked that it is the province and duty of federal courts to “say what the law is,” she wrote, “federal courts do not exercise general oversight of the Executive Branch.” Rather, “they resolve cases and controversies consistent with the authority Congress has given them.” This requires identifying which side has the stronger argument, and determining what the relevant law is, but this does not give individual judges the authority to resolve contested legal questions for the nation as a whole, unless that has been authorized by Congress or can be justified on other grounds (such as in cases in which a court properly allows a nationwide class action). 

The current complaint against the Supreme Court is that it is not doing enough, but in prior years it was that the court was doing too much by engaging in “judicial activism.” That charge was just as unfounded as current claims that the court is enabling Trump or engaged in partisan behavior. 

By any reasonable metric, the Roberts court has been significantly less “activist” than its predecessors. Since Chief Justice John Roberts was confirmed in 2005, the court has overturned prior court precedents and held legislative enactments unconstitutional at a significantly lower rate than did its post-World War II predecessors. The real complaint is not that the current court is more aggressive with precedents than its predecessors, but that it is conservative, overruling Roe v. Wade and decisions allowing for race-based affirmative action instead of overruling decisions protecting the right to keep and bear arms or prohibiting racial quotas. Then, as now, the real complaint is that the court is conservative.

One area in which the Supreme Court appears poised to overturn precedent related to the separation of powers concerns the constitutionality of independent agencies—in particular, agencies that exercise substantial regulatory authority but that are not subject to presidential control because their heads cannot be removed without cause. The Supreme Court upheld such arrangements in the 1935 case of Humphrey’s Executor, which concerned President Franklin D. Roosevelt’s attempt to remove a member of the Federal Trade Commission (FTC). The court’s rationale in Humphrey’s has not aged well. The FTC exercises far more regulatory authority today, and Humphrey’s may soon be overturned. 

In 2020, in Seila Law v. Consumer Financial Protection Bureau, the Supreme Court held that the president must be able to remove the heads of agencies that “wield substantial executive power.” This holding is hard to reconcile with laws preventing the removal of members of the National Labor Relations Board, Consumer Product Safety Commission, and even the FTC as it exists today. Nor is there any precedent for allowing an agency head to remain in office, and continue to exercise regulatory authority, after a president has sought to remove them. Rather, as in Humphrey’s Executor itself, the remedy under current law is for a wrongfully terminated official to seek damages.

Given Seila Law, it should be neither surprising nor disturbing that the Supreme Court has stayed lower court injunctions preventing the removal of agency officials in pending lawsuits. While there are reasonable arguments that Seila Law was wrongly decided, it is worth remembering that the court applied its holding consistently during the Biden administration, and President Biden successfully removed the heads of the Federal Housing Finance Administration and Social Security Administration, among others, relying on the Seila Law precedent. Here, as elsewhere, Congress retains ample power to protect meaningful agency independence should it choose to exercise it. 

The answer to a president seeking to assert his authority beyond legal or constitutional bounds is not for the judiciary to respond in kind. One deviation from separation of powers principles does not justify the other. Instead of urging the aggrandizement of district court judges, it would be better to make Congress do its job. After all, it is Congress that retains the power to issue or withhold appropriations, limit delegations of regulatory authority, and authorize broader judicial relief. 

The real concern should be the extent to which the separation of powers appears to have been replaced by the separation of parties. Instead of a system in which one branch’s ambition counters that of the other, we have a legislature unwilling to challenge or constrain a president of the same party. Congress’ persistent failure to resolve nationwide controversies and set national priorities through active legislation and refusal to exercise any meaningful oversight of the executive branch threaten greater erosion of the constitutional order than anything done (or not done) by the court. 

The justices are far from perfect, but the Supreme Court appears to be the only branch of government that seems to understand and is willing to exercise its job under the Constitution. If we are concerned about threats to the separation of powers, our focus should not be on One First Street.