This time, the anti-Trump resistance is in the courts

Since Donald Trump’s return to power, a handful of federal judges scattered throughout the United States have acted a barrier to the nationalist, protectionist and ultra-conservative agenda he’s deploying — without the approval of Congress and at top speed — through an avalanche of executive orders and other proclamations that run afoul, in many cases, of the law.

During his first stay in the White House, the politician ran into court opposition over his most controversial decisions, as when he prohibited entry into the United States of citizens from seven majority-Muslim countries. But this time, things are different. Previously, his unexpected rise to power was received by vast protests. Nowadays, his persona has become a familiar presence in U.S. politics — and resistance to his policies has been largely limited to the courts.

The goal of legal challenges to the Trump administration is to stem a flood of his “illegal and dangerous” decrees, as Donald Sherman, vice president of Citizens for Responsibility and Ethics in Washington, explains in a phone interview. His organization, which has a long history of combating Trump, is behind two of the more than 70 lawsuits against the administration that have been filed thus far. The group filed one during the first days of the president’s second term, stating that it believes that the creation of Elon Musk’s Department of Government Efficiency “violates” laws pertaining to transparency and state employees. The second came the following week, in response to an executive order intended to curtail the right of government workers and facilitate their dismissal.

The debate around the separation of powers, an essential dimension of the U.S. political system, has also risen to the fore during this second administration. It stems from the current tug-of-war between executive and judicial branches that has led Trump’s detractors to warn of the beginnings of a “constitutional crisis.” They accuse him of authoritarianism, of ignoring the safeguards of checks and balances (which guarantee peaceful coexistence between the three branches of government), as well as overstepping his presidential power by adopting measures that have far-reaching consequences for the American people, without the approval of the legislative branch. Throughout it all, Trump’s two closest allies — Musk, a favorite target of plaintiffs, and Vice President J.D. Vance — have called for the courts’ decisions to be ignored.

To the president’s supporters, it’s the judges who are undermining the executive power with politically motivated decisions, a viewpoint they largely base on the fact that some were appointed by Trump’s Democratic predecessors (though others come from the times of George Bush Jr. and Ronald Reagan). They think the magistrates would prefer to ignore the Republican’s overwhelming mandate at the polls and the campaign promises he made in regards to immigration, the reduction of federal bureaucracy and the culture wars that Trump is currently racing to fulfill. Polls suggest that a good portion of these voters still support the president.

Hyperactivity in the Oval Office

In his nearly four weeks in the Oval Office, the 78-year-old president has demonstrated an unprecedented hyperactivity (doubling the number of executive orders signed by his predecessor Joe Biden during the same period), as well as an abundant desire to cross names off of the “list of enemies” he threatened on his path back to the White House. During these dizzying first days, the courts have aborted Trump’s plans on around 15 occasions: blocking Musk and his team’s access to the keys of the U.S. Treasury, stopping attempts to end birthright citizenship (twice), suspending various orders that violated the rights of the trans community and ordering the foreign humanitarian aid tap to be turned back on. That first decision, the freezing of Musk’s plan for the voluntary departure of civil servants, was later reversed, allowing for some 75,000 government workers to abandon ship before they were thrown overboard.

Vance responded to that particular legal controversy via a post on X, Musk’s social network that has become — in another possible conflict of interests — the preferred public square of the new administration. “If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power,” wrote the vice president, who holds a law degree from Yale. Musk expressed his approval of the post and took to X to demand the “impeachment” of a judge who blocked his DOGE employees’ access to the Treasury Department’s confidential data.

Last week, as his four-year-old son looked on, the richest man in the world received Trump’s public support in the Oval Office, where Trump sat as Musk justified his plans to reporters to shrink the federal government in accordance with Silicon Valley’s time-honored tradition of “moving fast and breaking things.” “I always abide by the courts, always abide by them,” said the president. “And we’ll appeal,” Trump added. “But then what he’s done is he’s slowed down the momentum. And it gives crooked people more time to cover up the books.” Upon hearing this, it was impossible not to reflect on how Trump hung up in the White House his mugshot, taken upon being booked at an Atlanta police station in relation one of his four consecutive trials between 2023 and 2024 — whose consequences he effectively dodged through delays.

The president’s statements in the Oval Office that he was ready to comply with judicial orders even when they ran contrary to his agenda was too little, too late for The New York Times, whose front-page headline that day proclaimed that “Trump’s Actions Have Created a Constitutional Crisis, Scholars Say.” Then, in a Thursday editorial, the progressive publication warned “that constitutional order suddenly appears more vulnerable than it has in generations. President Trump is trying to expand his authority beyond the bounds of the law while reducing the ability of the other branches to check his excesses. It’s worth remembering why undoing this system of governance would be so dangerous to American democracy and why it’s vital that Congress, the courts and the public resist such an outcome.”

On Saturday, the president seemed to respond to the op-ed without expressly mentioning it in a tweet that had a Napoleonic tinge: “He who saves his Country does not violate any Law.”

“People forgot what energy in the executive looks like”

In another editorial this week, the conservative The Wall Street Journal invited its readers to a “less apocalyptic breakdown” than that of the Times, dividing the decisions made by the new administration into three categories. “Most rest on strong legal ground,” according to the article. “Some are legally debatable and could go either way in court. In still others Mr. Trump appears to be breaking current law deliberately to tee up cases that will go to the Supreme Court to restore what he considers to be constitutional norms. None of these is a constitutional crisis.” In a Journal podcast, John Yoo, a UC Berkeley professor, offered his theory as to why there is so much leftist alarmism in the country: “I think what we have is people forgot for the last four years during a comatose presidency what energy in the executive looks like.”

It will take some time, although possibly as little as a few weeks, for some of the cases to arrive to the Supreme Court, which is currently in a lop-sided state: six of its nine justices are conservative, and three of them were appointed by Trump. “When this happens, it presents a real test of judicial independence,” Devon Ombres, a lawyer who is the senior director for courts and legal policy at the Center for American Progress. “This is where we’ll see if the Supreme Court decides whether to continue expanding presidential powers, as it did in July when it granted Trump far-reaching immunity for the illegal acts he committed at the end of his first administration.” Ombres believes that the executive power that Trump is attempting to wield “is the same as that which the founding fathers revolted against during the American Revolution; the power of a king.”

Musk’s role

The “worst part,” according to Ombres, is Trump’s empowerment of Musk. “He’s appointed a person, without Senate confirmation, to supervise the functioning of the federal government. [Musk] is nothing more than a special government employee, who by law can only work 130 days a year. Basically, and without getting into the conflicts of interest generated, all DOGE initiatives can be considered illegal at best. With some of his orders, Trump is also violating several laws, the Constitution itself and the separation of powers, as well as nullifying the authority of Congress.”

University of Massachusetts law and political science professor Paul Collins finds the messages being sent by Musk and Vance “very troubling.” “If the executive power decides to openly challenge court decisions, there’s not much they can do about it,” other than to assert that “the country would approach the condition of a lawless state,” he explains in an email.

Collins says that throughout the history of the United States, judges have feared that one day, a powerful figure will not abide by their decisions. “Fortunately,” he says, “although presidents do not always enthusiastically abide by judicial decisions, they rarely challenge them openly. Although there are some precedents, such as when Abraham Lincoln did so during the Civil War.” In that case, the dispute was over his power to suspend the rebels’ right to habeas corpus, which he did in the name of stopping the advance of the Confederacy.

Beyond the debate over the role of the courts, the powers of Congress are also under question in this crisis. The Republicans in the U.S. Capitol seem for the moment to be completely aligned with the president, and supported his Cabinet appointments, many of which require Senate approval. Sherman believes that this trend may change when the effects of the executive orders and massive layoffs of civil servants, who are based throughout the country, begin to be felt by the citizens. “The more damage his actions do to ordinary Americans,” he warns, “the harder it will be for members of his party to defend the president to their constituents.” This theory would explain media reports this week that some Republican members of Congress have begged Musk and his DOGE group of young men (some no older than 19) keep their scissors away from their districts.

And the Democrats? In contrast to 2017, they still seem leveled by the party’s defeat at the ballot box, lacking consensus and a leader to guide them. In recent days, some members of Congress have taken part in demonstrations against the president’s agenda, gathering outside the headquarters of the U.S. Agency for International Development, Musk’s first victim, and marching through the streets of Washington in a protest to save government workers. These gestures were not enough in the eyes of David Remnick, editor of The New Yorker, a magazine that turns 100 this month. In a viral appearance on Jon Stewart’s late night comedy and politics program The Daily Show on Monday, Remnick said that the Democratic Party is “licking its wounds, it’s beating itself up for what happened — and rightly so, in terms of the Biden decision to run a second time, or the decision to kind of have a willing suspension of disbelief on where Biden was in terms of his popularity or his age. There’s a kind of sense of injury, embarrassment and withdrawal. But enough already.”

“The problem,” says Ombres, who has worked in the House of Representatives for years, “is that until the midterm elections, the party is in a situation of very little power in the Capitol [where the Republicans control both houses].” The Democrats seem to be holding their breath until November 2026, when they have the chance to at least regain control of the House, and stand up to Trump from the legislative branch, as they did during his first presidency, during which he was subjected to two impeachments. Meanwhile, the resistance is in the courts.

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