Seven months into Donald Trump’s presidency, the verdict is in: The Supreme Court has greatly eroded separation of powers.
If there is to be a check on Trump’s unconstitutional and illegal actions, it must come from the courts, because neither those around him nor Congress have shown any inclination to rein in the president. But although the lower courts have frequently stopped unconstitutional actions, the Supreme Court has repeatedly reversed these decisions to align itself with Trump’s unprecedented exercises of presidential power.
Trump, by his words and his actions, has governed as if there were no checks on his authority. “He who saves his Country does not violate any Law,” he wrote on social media in February. At a televised press conference last month, the president, when discussing his effort to deploy the National Guard to U.S. cities, claimed, “the right to anything I want to do. I’m the president of the United States.”
Trump’s assertions of presidential power are broader than those of any president who has come before him. No president before has ever claimed that he can fire everyone in the executive branch of government. No president has claimed the ability to eliminate agencies created by federal statute. No president has claimed the authority to massively cut off federal spending appropriated by Congress. No president has attempted to invoke the Alien Enemies Act of 1798 except in declared wars. No president has invoked “emergency powers” in non-emergency situations, such as for imposing tariffs and ending collective bargaining for federal employees, to the same extent. He has violated the Posse Comitatus Act—and signaled that he intends to continue to do so—through his use of the American military for domestic law enforcement.
It is against this backdrop that the Supreme Court’s failure to check President Trump is so deeply disturbing. In a relatively short period of time, the conservative justices have empowered the president and undermined separation of powers.
“The Supreme Court has greatly reduced the power of the federal courts. And it has done so at a time when the federal judiciary may be our only guardrail to protect the Constitution and democracy.”
Erwin Chemerinsky
“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.”
Jonathan H. Adler
For example, the high court has made it far more difficult to restrain Trump’s unconstitutional actions by ending the authority of federal courts to issue nationwide injunctions.
In its June decision in Trump v. CASA, the court ruled that federal courts lacked the power to issue injunctions keeping Trump’s executive order limiting birthright citizenship from being implemented anywhere in the United States. The court came to this conclusion even though there is nothing in the Constitution or federal statutes preventing federal courts from issuing nationwide injunctions. Instead, astoundingly, the court concluded that federal courts could not issue nationwide injunctions because the High Court of Chancery in England could not do so in the 18th century. No court in England could invalidate an action of the king, so it makes little sense to use English law from over two centuries ago to define federal court power today.
Let there be no doubt what this means for separation of powers: The Supreme Court has greatly reduced the power of the federal courts. And it has done so at a time when the federal judiciary may be our only guardrail to protect the Constitution and democracy. As Justice Ketanji Brown Jackson wrote in her dissent, “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.”
Meanwhile, the Supreme Court has allowed the president to fire top agency officials in violation of federal statutes. In Humphrey’s Executor v. United States (1935), the court unanimously upheld Congress’ effort to limit the removal of a member of the Federal Trade Commission. Under the Federal Trade Commission Act, the president could fire a commissioner only for “inefficiency, neglect of duty, or malfeasance in office.” The court explained that Congress, pursuant to its powers under Article I of the Constitution, could create independent agencies and insulate their members from presidential removal unless good cause for firing existed.
Since taking office on January 20, 2025, Trump has made clear that he does not believe that Humphrey’s Executor should be regarded as good law and that he will not comply with it. Trump’s argument is that the Constitution creates a “unitary executive,” with the president having the power to control all actions in the executive branch of government. Specifically, he says this means that he should be able to fire anyone in the executive branch.
In Trump v. Wilcox, a matter on the Supreme Court’s emergency docket, the six conservative justices seemed inclined to support Trump’s rationale, setting the stage for the likely reversal of Humphrey’s Executor. The case centers on Gwynne Wilcox and Cathy Harris, both of whom were fired—without any assertion of cause and in violation of federal statute—from their respective positions at the National Labor Relations Board and Merit Systems Protection Board.
The district court enjoined the firing and the D.C. Circuit in an en banc decision affirmed. But the Supreme Court stayed the preliminary injunction in a 6-3 ruling, allowing Wilcox and Harris to be dismissed while the matter was being litigated.
Justice Elena Kagan wrote a strong dissent, joined by Justices Sonia Sotomayor and Jackson. She defended Humphrey’s Executor, stating the decision “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.” She argued that the firings were clearly illegal under the landmark decision, adding that “the order allows the President to overrule Humphrey’s by fiat, again pending our eventual review.”
The court further strengthened the president’s ability to remove agency officials with its July ruling in Trump v. Boyle, which allowed Trump to remove members of the Consumer Product Safety Commission, notwithstanding a federal law limiting firing to when there is just cause. Again, the justices were split 6-3 in giving Trump a power that no president has ever asserted or possessed. The court also has stayed lower court rulings preventing the firing of even civil service employees.
“If there is to be a check on Trump’s unconstitutional and illegal actions, it must come from the courts, because neither those around him nor Congress have shown any inclination to rein in the president.”
Yet another example of executive overstep is Trump’s efforts to eliminate federal agencies created by statute and to cut billions of dollars of federal spending. Congress, by law, created the federal Department of Education. Congress could eliminate it. But the Trump administration announced it intended to do so on its own, firing virtually all of the department’s employees. The Supreme Court, in McMahon v. New York, reversed the lower courts and ruled in favor of Trump.
Under the Constitution, Congress has the spending power: The president has no constitutional authority to refuse to spend funds appropriated by federal statute. Moreover, a federal statute—the Impoundment Control Act—prohibits the president from terminating federal spending. Yet President Trump has done this in cutting off money to federal agencies, to a myriad of federal programs, to universities, to foreign countries, and to others.
I expected that this was an area where the court would determine that the president was clearly usurping Congress’s spending power. But in two cases—Department of Education v. California and National Institutes of Health v. American Public Health Association—the court held that federal district courts lacked the power to order that funds be restored. Both cases were 5-4, with Chief Justice John Roberts joining Sotomayor, Kagan, and Jackson. Rather than uphold Congress’ crucial role in determining how federal money will be spent, the court empowered the president.
Perhaps the court will come to play a greater role in checking the president in the months and years ahead. If not, I have grave fears for the future of our constitutional democracy.
