Court Cases Update - All set up for a constitutional crisis

Will he or won't he follow court orders?

Donald Trump and his gang in the White House are quickly claiming territory across the entire Executive Branch. A key theme in their chaotic spree is swiping up more power for the Executive Branch whenever possible. Trump and his Administration have already been sued in multiple cases in federal court by plaintiffs arguing that Trump’s orders are illegal or unconstitutional.

The power of the Executive

As most of us in the U.S. learned in grade school (but maybe a refresher is needed), the federal government consists of three branches—Congress, Executive (President), Judiciary. Congress makes the laws, the Executive enforces/carries out the laws, and the Judiciary tells everyone how to follow the laws. Each branch has the ability to check the powers of the other. For a highly simplified summary:

• Congress confirms judges and decides on the number of district and appellate courts. Congress and the states can also issue amendments to the Constitution. All bills that might become law begin in Congress, and Congress can override the Executive’s veto. Congress declares war. Congress has the power to impeach the president and other federal officials, including federal judges and Supreme Court justices, and remove them from office.

• The Executive can veto legislation from Congress. The Executive also nominates judges, justices, and other federal officials. The Executive leads the armed forces.

• The Judiciary decides whether anyone (included elected federal officials) is following the law. The Judiciary also has the power of judicial review, which means it can invalidate laws, regulations, or actions based on the court’s interpretation of the Constitution. That is, the courts decide what the Constitution means, and they ensure all other law adheres to the law in the Constitution.

You might get the sense from the Constitution that the Executive is kind of weak; however, the Constitution does not account for all of the power that the modern-day President has in practice.

The laws Congress writes cannot possibly cover everything, so it is left to the sprawling Executive Branch of departments, agencies, and offices to write regulations that carry out the intent of the laws. Congress also has a habit of not funding the full cost of all mandated programs, so the President has discretion in how they can apply Congressional funding, so long as all funding that Congress appropriates to a program is spent on that program. (This bit about Congressional appropriations for specific programs is a point we will return to later.) Perhaps more perniciously, the Executive has a lot of legal authority to initiate military actions outside of formally declared war.

You might also get the sense from the Constitution that the Congress should be pretty powerful. It was listed first after all, in Article I, and it can kick out judges and presidents. (The Supreme Court even confirmed this “sole” right to kick ‘em out.)

Why did I go through that highly simplified summary that most of you already know?

Because it is critically important to remember where the guardrails are to protect the federal government against bad actors… and to remember where the guardrails end, where there are no more guardrails, should one or more of the Three Branches fail to act to check power. This would be a constitutional crisis: a situation beyond the law of the U.S. Constitution.

Thus far, the Trump Administration has issued a number of orders and undertaken a number of actions that would have the effect of greatly expanding the power of the Executive Branch, arguably beyond that allowed by the Constitution. Many of these cases regard culturally hot political topics, the outcomes of which would affect thousands of people or more, and they are being challenged in the federal courts. Favorable verdicts for the Trump administration could set perverse precedents for future Executive actions. If the Executive can decide one law isn’t worth following for whatever reason—even if they truly believe it is a bad law—then why can’t they or future Presidents just disregard any other laws? We would quickly become a country where law becomes arbitrary. Democracy cannot exist when the rule of law is merely a suggestion.

What is the court process, and when should you worry?

Below is flow chart that roughly outlines the process for these federal court cases. There are a lot of details I’m eliding, but hopefully this will help anyone unfamiliar with the federal courts follow along with the Trump Executive Cases.

Here is further explanation of each item:

A: The Trump Administration issues an Executive Order or commits some other action that arguably unreasonably expands the scope of the powers of the Executive Branch.

B: In order to sue the Trump Administration in federal court, any plaintiff must have “standing”; that is, they must have been subjected to some real harm as a result of the executive action. Because the actions under review have been so practical and apply to so many people, there are many people with standing. For example, states have asserted standing in the birthright citizenship cases because they will have to drastically reform their citizenship paperwork processes for births, which will cost money. Employees can sue over mass firings because they have lost their jobs.

C: The District Courts in the federal courts system are the “trial courts”. These judges hear all of the evidence and make a decision. The judges can also issue injunctions or temporary restraining orders (which you might see referred to as TROs). Because many of these Trump Executive Cases are very clearly outside of common accepted interpretations of laws, I’d expect the District Courts to generally side with the plaintiffs or to see competing judgements from different Courts as similar complaints are made around the country.

D: Either the plaintiff or the defendant can appeal the decision if they are the losing party. Given Trump’s tendency to fight, I would expect him to demand that all of his losing cases are appealed, even if the District Courts’ opinions are embarrassingly strongly-worded and well-referenced. And given the salience of the areas of law contested and the real harm plaintiffs face, I would expect plaintiffs to appeal losing decisions, as well.

E: The Appeals Courts are not trial courts; they consider whether or not the law was applied appropriately in the District Courts. That is, they determine if a legal error was made.

F: Litigants on the losing side of the Appeals Court can petition the Supreme Court for what is called a writ of certiorari. If the Supreme Court “grants cert”, that means at least 4 justices have agreed to have the case sent up from the lower court to be heard by the Supreme Court. One option the Supreme Court then has is to send the case back to the Appeals Court for further review. They might do this if they feel a legal point was improperly applied. The Supreme Court justices can also issue stays and other types of court orders.

G: The Supreme Court doesn’t have to take the case. In fact, the Supreme Court takes up very few cases. This is primarily because the lower courts tend to apply the law correctly and interpret it reasonably, drawing on court precedent. Basically, the Supreme Court often feels it has nothing more to add. They are more likely to take a case when it or it and similar cases have received conflicting decisions from lower courts. The Supreme Court will then feel that it needs to issue a decision in order to solve the disagreement. The Supreme Court can also decide to hear cases so they can raise constitutional points that have not yet been considered by lower courts or to emphasize a point of law that they feel needs stronger precedent. The nine justices often have different motivations for why they might choose to vote to hear a case.

H: The Supreme Court can, of course, decide in favor of the Executive (Trump). Historically, this is totally normal, as the government often has very good reasons why it enforces laws in the way that it does. The box in this diagram is “tentatively red” because these Trump Executive Cases are not normal. For many of them, siding in favor of Trump could greatly expand his powers and the powers of the Executive Branch in relative perpetuity. While most politically salient Supreme Court decisions have celebrators and detractors, the detractors in this situation would not only be angry, many would lose complete trust in the current manifestation of our government and our Constitutional order. That said, the Supreme Court regularly issues extremely nuanced decisions that decide in favor of some parts of arguments and against others.

I: The Supreme Court can decide in favor of the original plaintiffs and against the Executive.

J: Decisions or actions like injunctions can come from the District, Appeals, or Supreme Court. In times of normal order, the parties of the case comply with all orders and the final decision. This is good, and it means everyone is following the law. If someone still doesn’t like the decision, they can take it up with Congress to write a new law, or with Congress and the States to change the Constitution.

K: If the Executive Branch does not follow court orders or the courts’ decisions, it would be a constitutional crisis. The subsequent actions of any part of the federal government would be highly unpredictable, as the situation lacks precedent and there is really only one remedy provided in the Constitution: Impeachment and subsequent Conviction by the Senate.

What cases have been filed against the Trump Administration?

Many of the orders and actions by the Trump Administration that would expand executive power have been challenged in federal court. I’m referring to these cases collectively as the “Trump Executive Cases.”

I won’t chart all of the separate cases here, as others have already done it. I highly HIGHLY recommend the case tracking from Just Security and Lawfare:

• https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/

• https://www.lawfaremedia.org/projects-series/trumps-first-100-days?utm_source=substack&utm_medium=email#challenges

Here’s a summary of the many cases filed so far:

Birthright citizenship

In the “Birthright Citizenship” executive order (EO), Trump argued that the Fourteenth Amendment’s clause of “subject to the jurisdiction thereof” means that only babies born to U.S. citizens automatically become citizens themselves. This is a wildly irregular interpretation, as that exact clause and the term “juridistion” have been examined by the federal courts to simply mean anyone currently in the U.S. who has to follow the law (basically, everyone but diplomats).

• Two district court judges have issued nationwide injunctions blocking the EO. Judge John Coughenour called the order “blatantly unconstitutional”, adding that “it boggles the mind”.

• I recommend reading the initial complaint filed by the State of Washington et al., which provides a lot of detail about the legal arguments and is fairly reader-friendly.

• On February 7, the Trump Admin filed an appeal to the Ninth Circuit.

Immigration

Several complaints have been issued against Trump’s various harsh immigration policies, including against punishments or expanded ICE activity in sanctuary cities and in places of worship, and against elimination of protections for asylum applicants and immigrants in detention. The Trump policies stem from Executive Orders 14165, 14159, and a presidential proclamation.

• These cases have been filed with District Courts. In one case, a motion was issued for a temporary restraining order that would allow plaintiffs who were denied asylum appointments when all appointments scheduled through the former CBP One app were canceled to continue to pursue their asylum claims. I don’t believe the motion has been decided upon yet.

Federal Funding Pause

The Office of Management and Budget issued Memo M-25-13, which directed all agencies to temporarily halt funding of assistance programs, including grants and foreign aid. As far as I know, this memo was not released to the public.

• A District Court judge very quickly issued a temporary restraining order, and the Trump Administration withdrew the memo in response, ostensibly in an attempt to render the case moot.

• However, Trump’s Press Secretary posted on X: “This is NOT a rescission of the federal funding freeze. It is simply a rescission of the OMB memo.” Consequently, two District Court judges continued with the cases, issuing two more temporary restraining orders, as they did not believe the rescission of the memo was done in good faith.

Department of Government Efficiency (DOGE).

Numerous cases have been filed arguing that private citizens should not be allowed decision-making authority without public access to information (which they claim is a violation of the Federal Advisory Committee Act). Other suits argue that DOGE should not have access to sensitive data at the Departments of Labor and Treasury and that DOGE is violating the Freedom of Information Act (FOIA).

• One temporary restraining order was issued that allows DOGE only “read-only” access to sensitive Treasury systems. (Post-publication correction: This was not a TRO, it was a consent agreement between the two parties.)

• In a different case, another emergency restraining order was issued that barred DOGE from accessing Department of Treasury systems and ordering all already-downloaded files to be deleted.

  • Just this morning, Elon Musk has called for the impeachment of this federal judge.

Federal Employees

Soon after Trump’s inauguration, most executive branch employees received an email from the Office of Personnel Management offering deferred resignation, supposedly with compensation (Fork in the Road email). Employees were given a deadline to accept, beyond which they were told they could be terminated.

• A federal judge issued an order to extend the deadline for responding to the offer. OPM responded by extending the deadline.

In another employment case, Gywnne Wilcox, the chair of National Labor Relations Board, is suing to prevent her allegedly unlawful removal by Trump.

There are also several suits filed against the “Schedule F” modifications, which turn several high-level civil service positions into positions for political appointees.

U.S. Agency for International Development

The American Foreign Service Association filed a lawsuit arguing that the dissolution of USAID is unconstitutional and violates the Administrative Procedure Act.

• On Friday, a District judge issued a temporary restraining order that prevents the government from evacuating USAID employees from their host countries or placing employees on Administrative Leave. This was a last-minute order, as the employees were due to be evacuated and placed on leave Friday evening.

Transgender Rights

Several cases have been filed against Trump and his Administration for provisions in Executive Orders 14168, 14183, and 14187 that target transgender individuals.

• District court judges have issued temporary restraining orders in two separate cases that order the government to continue providing transgender medical care for the imprisoned plaintiffs.

FBI Firings

The Federal Bureau of Investigation Agents Association as well as several anonymous individual employees are suing to prevent firings of employees involved in the January 6th investigations, and they are also urgently trying to prevent the public release of the names and other personal information of FBI employees by the Trump Administration.

• A temporary restraining order was issued that prevents the government from publicly releasing a list of agents considered for termination for their involvement in the January 6th cases.

Who is filing these cases? State Attorneys General, often banding together on a case; the ACLU and advocacy groups filing on behalf of plaintiffs with standing; unions; professional organizations; religious groups; individuals; and more.

One additional note: I might have missed it, but I haven’t yet seen a case that explicitly cites the Impoundment Control Act (ICA) as an argument for why the Executive Branch cannot halt funding. The ICA requires that the President spend the funding Congress appropriated on the programs Congress appropriated it for. The Executive Branch can only halt funding or shift funding by following very explicit procedures. Given the number of unilateral funding changes Trump and Musk are attempting to make with Congressionally appropriated funding, I would expect this to come up sometime either in court or in actions by Congress to protect their appropriation power.

A second additional note: I haven’t yet seen any cases about Trump’s Tiktok EO, which says that Tiktok can continue to operate in violation of a law passed by Congress and signed by a President. This is another striking case of executive overreach, or at least a very, very broad interpretation of the part of the law that says Tiktok can still operate if a sale is pending.

Will the Supreme Court actually rule in favor of Trump?

Birthright Citizenship

It’s very difficult to believe that even this Trump-friendly Supreme Court will side with him on the Birthright Citizenship cases. Frankly, it’s hard to imagine that the justices will even hear the cases.

If they did hear and decide in favor of Trump, however, that could be very bad. The Birthright Citizenship cases are a major reason why the “Supreme Court decides with Executive” box is red. Normally, the Supreme Court deciding with a litigant is normal order, whether one likes the decision or not. Most Supreme Court decisions are rational and grounded in the law and legal theory. If the Supreme Court decides to allow Trump to reinterpret the Fourteenth Amendment so far beyond its obvious plain meaning, then it will indicate that a majority of justices on the Court no longer care for the law itself. This would be a complete failure of the Judiciary to check the powers of the Executive.

I want to emphasize that the Birthright Citizenship cases are different from say, Dobbs (which overturned Roe v. Wade) or Loper (which overturned the Chevron Doctrine); the Birthright Citizenship cases go right to whether we can trust whether the Constitution actually means what it says. Instead of seeking an amendment, Trump merely asserted that the Fourteenth Amendment means whatever he wants it to mean. A decision in favor of Trump could be legally and culturally cataclysmic.

The Unitary Executive Theory

The Unitary Executive Theory is a legal doctrine popular with Donald Trump and many conservative Republicans, including those at The Heritage Foundation and the authors of Project 2025. Russ Vought, the newly confirmed Director of the Office of Management and Budget, is a strong proponent of the theory. It posits that the President is the sole authority of the Executive Branch, and it calls for a broad expansion of powers for the President.

Almost no one disputes that the President is the one leader of the Executive Branch, and a lot of people think the President should have more power, but maybe not much more. The proponents of the Unitary Executive Theory argue that, for instance, independent regulatory agencies are unconstitutional, and they believe the President should be able to fire the leaders of those agencies at will. This could include positions like the Postmaster General and the Chairman of the Federal Reserve.

The current Supreme Court has embraced aspects of the Unitary Executive Theory. In Seila Law LLC v. Consumer Financial Protection Bureau, Alito explicitly confirms his views for a unitary executive, and Brett Kavanaugh has argued for a long time that presidents should not be subject to criminal prosecution.

The current Supreme Court is likely to have a fairly expansive view of what a president is allowed to do. Indeed, they confirmed this in Trump v. United States, in which the majority wrote: “the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.”

Thus, the current Supreme Court might well side with Trump on cases that would expand his reach over the government.

What happens if Trump fails to follow a court order?

Honestly? I have no idea. This would be a crime. There’s no clear precedent in American history. Lincoln technically defied a court order during the U.S. Civil War, but there are a lot of details about that event that make it not very relevant for these Trump Executive Power cases.

If an average person failed to follow a federal court order, the judge would hold that person in contempt of court, and if that person continued to disobey the ruling, presumably they would be arrested by the U.S. Marshals. The U.S. Marshals Service is part of the Department of Justice, currently headed by Trump appointee—and former Trump impeachment defense lawyer—Attorney General Pam Bondi. Of course, AG Bondi reports to Trump himself.

For Donald Trump to defy a court order, his attorneys would have to take the plunge with him, and that would 10000% be grounds for disbarment. Internal pressure could force Trump to comply. He is not omnipotent. He needs others at his side.

The most concrete check remaining is with the Congress. Presumably refusing to follow the order of a federal court would be enough to open an impeachment case, given the extraordinary ramifications on the rule of law that the action would have. I’ve avoided the “D” word so far, but I have to assume impeachment is a rational response to a president who is trying to be a dictator. That said, I don’t know anyone, anyone who thinks this Congress is up to the task—and I don’t mean this to be a political statement. It’s just an honest observation.

So then what?

One very important point to emphasize is that, because of the overall lack of transparency in the Trump Administration, we don’t really know if all current court orders are being followed. For instance, as far as I know there is no publicly-available, confirmatory evidence that DOGE has only “read-only” access to the Treasury disbursement systems.

Coda

I’ll end with the obligatory “IANAL”: I am not a lawyer. There are experts out there who can provide detailed knowledge (you should listen to them! I do!), and as always, I am all too capable of making mistakes.

That said, I may not be a lawyer, but I can read.

It is important that we carefully consider our knowledge gaps (and be mindful of falling into Dunning-Krueger traps), but no one should let their lack of formal education keep them from having the audacity to learn, to read up, and to speak out. Read the laws. Read the U.S. Constitution. Read the history of the Constitution*. Read different interpretations from different experts on the arising legal situations. Discuss with your friends and your community. Be frank and press your case but be open to learning things that change your mind.

The laws of a democratic nation are written for a reason—so that everyone can read them. Sure, legally binding interpretations are rightfully left to judges, but every person subject to the law is free to read the law, build their own understanding of the law, and act accordingly**. Certainly Donald Trump is not qualified to formally interpret law, yet his executive orders are radically reinterpreting our laws, from U.S. Code to the U.S. Constitution itself. Do not assume that just because Donald Trump’s cadre includes people with fancy degrees that his interpretation of the law is more correct than your own.

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*For a deep dive, consider James Madison’s own notes from the Constitutional Convention, which cover what they actually discussed in their meetings. You’ll learn what concerned the founders and what didn’t, which can be very surprising in light of our present-day constitutional battles. Read the Federalist Papers and responses from the anti-Federalists. Several books have been written by prominent historians on the ratification of the constitution, on the post-Civil War amendments, and so on.

**Obviously, an individual’s misunderstanding of the law is not an excuse for committing a crime. In fact, building a proper understanding of law and acting in good faith is an essential responsibility of everyone subject to the law, including those who make, execute, and defend laws.