news analysis
With
Supreme Court Ruling, Another Check on Trump’s Power Fades
The court
tied the hands of judges at a time when Congress has been cowed and internal
executive branch constraints have been steamrolled.
The decision
by the Supreme Court to bar judges from issuing universal injunctions to block
government actions comes as other constraints on President Trump’s power have
eroded.
Charlie
Savage
By Charlie
Savage
Charlie
Savage has been writing about presidential power and legal policy for more than
two decades. He reported from Washington.
June 28,
2025
https://www.nytimes.com/2025/06/28/us/supreme-court-trump-executive-branch-power.html
The Supreme
Court ruling barring judges from swiftly blocking government actions, even when
they may be illegal, is yet another way that checks on executive authority have
eroded as President Trump pushes to amass more power.
The decision
on Friday, by a vote of 6 to 3, could allow Mr. Trump’s executive order seeking
to end birthright citizenship to take effect in some parts of the country —
even though every court that has looked at the directive has ruled it
unconstitutional. That means some infants born to undocumented immigrants or
foreign visitors without green cards could be denied citizenship-affirming
documentation like Social Security numbers.
But the
diminishing of judicial authority as a potential counterweight to exercises of
presidential power carries implications far beyond the issue of citizenship.
The Supreme Court is effectively tying the hands of lower-court judges at a
time when they are trying to respond to a steady geyser of aggressive executive
branch orders and policies.
The ability
of district courts to swiftly block Trump administration actions from being
enforced in the first place has acted as a rare effective check on his
second-term presidency. But generally, the pace of the judicial process is slow
and has struggled to keep up. Actions that already took place by the time a
court rules them illegal, like shutting down an agency or sending migrants to a
foreign prison without due process, can be difficult to unwind.
Presidential
power historically goes through ebbs and flows, with fundamental implications
for the functioning of the system of checks and balances that defines
American-style democracy.
But it has
generally been on an upward path since the middle of the 20th century. The
growth of the administrative state inside the executive branch, and the large
standing armies left in place as World War II segued into the Cold War,
inaugurated what the historian Arthur Schlesinger Jr. coined the “imperial
presidency.”
Presidential
power waned in the 1970s, in the period encompassing the Watergate scandal and
the end of the Vietnam War. Courts proved willing to rule against the
presidency, as when the Supreme Court forced President Richard M. Nixon to turn
over his Oval Office tapes. Members of both parties worked together to enact
laws imposing new or restored limits on the exercise of executive power.
But the
present era is very different. Presidential power began to grow again in the
Reagan era and after the terrorist attacks of Sept. 11, 2001. And now Mr.
Trump, rejecting norms of self-restraint, has pushed to eliminate checks on his
authority and stamp out pockets of independence within the government while
only rarely encountering resistance from a Supreme Court he reshaped and a
Congress controlled by a party in his thrall.
The decision
by the Supreme Court’s conservative majority comes as other constraints on Mr.
Trump’s power have also eroded. The administration has steamrolled internal
executive branch checks, including firing inspectors general and sidelining the
Justice Department’s Office of Legal Counsel, which traditionally set
guardrails for proposed policies and executive orders.
And
Congress, under the control of Mr. Trump’s fellow Republicans, has done little
to defend its constitutional role against his encroachments. This includes
unilaterally dismantling agencies Congress had said shall exist as a matter of
law, firing civil servants in defiance of statutory limits and refusing to
spend funds that lawmakers had authorized and appropriated.
Last week,
when Mr. Trump unilaterally bombed Iranian nuclear sites without getting prior
authorization from Congress or making any claim of an imminent threat, one
Republican, Representative Thomas Massie of Kentucky, stepped forward to call
the move unconstitutional since Congress has the power to declare war.
Mr. Trump
reacted ferociously, declaring that he would back a primary challenger to end
Mr. Massie’s political career, a clear warning shot to any other Republican
considering objecting to his actions. Senator Lisa Murkowski, Republican of
Alaska, recently told her constituents that “we are all afraid” of Mr. Trump.
But while
the immediate beneficiary of the Supreme Court’s ruling is Mr. Trump, the
decision also promises to free his successors from what has been a growing
trend of district court intervention into presidential policymaking.
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In the
citizenship case, the justices stripped district court judges of the authority
to issue so-called universal injunctions, a tool that lower courts have used to
block government actions they deem most likely illegal from taking effect
nationwide as legal challenges to them play out.
The
frequency of such orders has sharply increased in recent years, bedeviling
presidents of both parties. Going forward, the justices said, lower courts may
only grant injunctive relief to the specific plaintiffs who have filed
lawsuits.
That means
the Trump administration may start enforcing Mr. Trump’s birthright citizenship
order in the 28 states that have not challenged it, unless individual parents
have the wherewithal and gumption to bring their own lawsuits.
The full
scope of the ruling remains to be seen given that it will not take effect for
30 days. It is possible that plaintiffs and lower-court judges will expand the
use of class-action lawsuits as a different path to orders with a nationwide
effect. Such an option, Justice Amy Coney Barrett wrote in the majority
opinion, would be proper so long as they obey procedural limits for
class-action cases.
Still, in
concurring opinions, two other key members of the conservative bloc, Justices
Clarence Thomas and Samuel A. Alito Jr., warned lower-court judges not to lower
standards for using alternative means to issue sweeping orders in an effort to
circumvent the ruling.
Justice
Alito wrote that “district courts should not view today’s decision as an
invitation to certify nationwide classes without scrupulous adherence to the
rigors” of legal rules. Justice Thomas added that if judges do not “carefully
heed this court’s guidance” and act within limits, “this court will continue to
be ‘duty bound’ to intervene.”
In a rare
move that signaled unusually intense opposition, Justice Sonia Sotomayor read
aloud a summary of her dissenting opinion from the bench on Friday. Calling the
ruling a grave attack on the American system of law, she said it endangered
constitutional rights for everyone who is not a party to lawsuits defending
them.
“Today, the
threat is to birthright citizenship,” she wrote. “Tomorrow, a different
administration may try to seize firearms from law-abiding citizens or prevent
people of certain faiths from gathering to worship. The majority holds that,
absent cumbersome class-action litigation, courts cannot completely enjoin even
such plainly unlawful policies unless doing so is necessary to afford the
formal parties complete relief.”
Justice
Sotomayor also said the administration did not ask to entirely halt the
multiple injunctions against its order because it knew the directive was
patently illegal, and accused the majority of playing along with that open
gamesmanship. She, like the other two justices who joined her dissent, is a
Democratic appointee.
All six of
the justices who voted to end universal injunctions were Republican appointees,
including three Mr. Trump installed on the bench in his first term. The same
supermajority has ruled in ways that have enhanced his power in other avenues.
Last year,
the bloc granted Mr. Trump presumptive immunity from criminal prosecution for
his official acts as president. The ruling, by Chief Justice John G. Roberts
Jr., asserted that presidents have absolute immunity for anything they do with
the Justice Department and their supervision of federal law enforcement power.
Emboldened,
Mr. Trump this year has built on his approach from his first term, when he
informally pressured prosecutors to investigate his political foes. He has
issued formal orders to scrutinize specific people he does not like, shattering
the post-Watergate norm of a Justice Department case independent from White
House political control.
The
supermajority also has blessed Mr. Trump’s gambit in firing Democratic members
of independent agency commissions before their terms were up. The conservative
justices have made clear that they are prepared to overturn a longstanding
precedent allowing Congress to establish specialized agencies to be run by
panels whose members cannot be arbitrarily fired by presidents.
In a
separate concurrence, Justice Ketanji Brown Jackson offered a realpolitik take.
The majority’s exegesis of what powers Congress understood itself to be
granting lower courts when it created them in 1789 was a smoke screen of
mind-numbing “legalese,” she wrote, obscuring the question of whether a court
can order the executive branch to follow the law.
“In a
constitutional republic such as ours, a federal court has the power to order
the executive to follow the law — and it must,” she wrote before striking a
cautionary note.
“Everyone,
from the president on down, is bound by law,” she added. “By duty and nature,
federal courts say what the law is (if there is a genuine dispute), and require
those who are subject to the law to conform their behavior to what the law
requires. This is the essence of the rule of law.”
But Justice
Barrett accused her of forgetting that courts, too, must obey legal limits.
“Justice
Jackson decries an imperial executive while embracing an imperial judiciary,”
Justice Barrett wrote. “No one disputes that the executive has a duty to follow
the law. But the judiciary does not have unbridled authority to enforce this
obligation — in fact, sometimes the law prohibits the judiciary from doing so.”
Charlie
Savage writes about national security and legal policy for The Times.
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