Since entering office in January, US President Donald Trump has signed over 90 executive orders – a record in the last four decades of the country’s history. This swiftness has been mirrored by the speed with which trade unions, civil rights organisations and state attorney-generals have challenged his executive actions before the courts. To date, there have been over a hundred such lawsuits. 

A number of these challenges have resulted in judges issuing federal injunctions against the President’s orders on the grounds that they violate the US Constitution or statutory limits. The Supreme Court has also sided against the Trump administration twice, while it declined to intervene in a third case, allowing the lower court judgment – which found for the US executive – to stand. ‘We’re in uncharted territory here in terms of the speed and scope with which the lower federal courts have stepped in to limit executive action,’ says Tyler Valeska, an assistant professor of law at Loyola University Chicago. 

‘If people are expecting the American legal system to completely upend everything the Trump administration is doing, they’re going to be disappointed,’ says Claire Wofford, a legal scholar at the College of Charleston. For her, the onslaught of litigation illustrates that there’s limited other options available. ‘Until they have the chance to change things via voting, the courts are all that’s left for people who want to oppose the Trump administration,’ says Wofford, pointing to the President’s firm control of the executive branch and the acquiescence to him by Congress.  

As during his first term, the fate of President Trump’s agenda will largely be in the hands of US federal courts and the Supreme Court. His administration won 22 per cent of the cases brought against Trump’s executive orders during his first term, according to the NYU School of Law. 

President Trump’s current executive orders are expected to better withstand legal scrutiny. ‘The Trump administration came in much better prepared this time around in terms of the exact agenda that it wanted to pursue, the precise legal means that it wanted to use to get there and the precise legal doctrines in cases that it wanted to tee up challenges to,’ says Valeska.

The President also appointed more than 200 federal appeals court judges during his first term. ‘We’re talking about judges who generally align with the ideology that the Trump administration is putting forward, which includes immense power in the executive branch, its ability to control the federal bureaucracy, its anti-immigration stance, and probably its anti-transgender rights stance,’ says Wofford. 

She expects to see Trump-appointed judges in lower courts decide in his favour in many cases. However, ‘in other cases where Trump has really pushed the bounds of legality, I think those considerations are going to overwhelm political ideology,’ says Wofford.

The cases that the Supreme Court – with its six-to-three conservative supermajority, itself a legacy of Trump’s first term – decides to hear will depend upon a set of factors; primarily how cases are resolved at the lower federal appeals court level. The Supreme Court is most likely to take up cases that go to the heart of the constitutional regime and engage with fundamental legal issues that have split lower appellate courts. 

But what Valeska describes as ‘more prudential considerations’ might also come into play. Senior figures in the Trump administration have suggested the president is at liberty to ignore court rulings if they seek to constrain his executive power. ‘There is very much in the air for the first time in a long time, a real threat of a constitutional crisis if the administration were to ignore a court order, especially a Supreme Court order,’ says Valeska. ‘I suspect the Supreme Court judges would perhaps move strategically in a way that might mitigate against that very harrowing risk.’

This means that opponents of President Trump who’re looking to the courts to stop executive action that appears to clearly fall within the bounds of the law – such as the administration’s mass deportation efforts – will probably be disappointed. However, lawsuits challenging executive orders that legal scholars view as clearly unconstitutional are then more likely to be successful.  

More uncertain are the challenges centred on the constitutionality of executive action gutting federal agencies set up by Congress. At stake here is the notion of a single unitary executive that some argue is inherent in the US Constitution and the modern administrative regulatory state that today is a feature of every developed nation, says Novicoff. ‘Can Congress pass a law that establishes agencies or officers not directly accountable to the political branches of government?’ Novicoff asks, adding that the Supreme Court has avoided wading into this jurisprudential question for some time now. 

The Supreme Court will probably answer that question in the negative, Wofford says. ‘The big change I see coming out of the next couple of years of litigation in terms of executive power is [that we’re] going to have this expansion of the president’s ability to control the employees of the executive branch,’ she says. Highlighting that this would overturn legal precedent, Wofford adds that she doesn’t believe this is good for the Court or for the country.

Still, in terms of what she describes as the separation of powers system in action, Wofford highlights that currently, ‘the big structures that the framers put out in the US Constitution are being pressed on […] and the tensions they built into the system are actually being tested.’
 

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