Donald Trump brushes aside courts’ attempts to limit his power

US President Donald Trump has picked people for his administration who are “on board with this radical new theory of executive power”, says Elizabeth Goitein, of the Brennan Centre. Photo / Washington Post

Donald Trump’s second presidency has been defined by his conviction to govern alone, with escalating disregard for the courts or Congress.

As he approaches his 100th day in office, Trump appears increasingly emboldened to push the boundaries of executive power. He and his top advisers argue he is acting with a broad mandate from American voters as he drives an agenda to remake American society and the global economy, even amid many legal challenges.

But as courts challenge Trump’s drive for unilateral authority, the White House is increasingly circumventing unfavourable decisions with a tone of defiance. Administration officials have suggested this week they are not bound to follow court orders to return Maryland resident Kilmar Abrego Garcia, who the government has admitted was mistakenly sent to an El Salvador prison.

On Wednesday, a federal judge said he would launch proceedings to determine whether Trump administration officials should face criminal contempt charges for defying his order not to remove Venezuelan migrants from the United States based on the wartime Alien Enemies Act.

The administration this week also sought to limit newswire services’ access after a court order that said Associated Press could not be prohibited from certain White House events because of its editorial choice. Rather than allowing AP back into the wire rotation, Trump’s team simply eliminated the spots for all wire services. White House press secretary Karoline Leavitt has said the administration is complying with all court orders, and White House communications director Steven Cheung said the administration planned to appeal the contempt proceedings.

Trump has also moved to rule through executive action, signing more than 120 executive orders in less than three months in office – moving at a much faster clip than in his first term, when he signed 220 during four years. No other President since President Ronald Reagan has signed over 200 in a single term, data compiled by the American Presidency Project shows.

This month, Trump used emergency powers to unilaterally deal a body blow to globalisation, implementing tariffs on almost all imports. The tariffs have sparked legal challenges from businesses and California, which argue Trump’s moves undermine the separation of powers because the constitution grants Congress the power to “lay and collect taxes”.

‘More overt hostility’

Trump’s moves are the culmination of a decades-long conservative movement to expand the power of the executive branch after it was significantly curtailed after Watergate. But many legal scholars and experts are expressing alarm over the heated clashes between the White House and the courts.

Legal experts have warned that Trump’s actions threaten a foundational premise of American democracy: that governance is divided among the legislative, executive and judicial branches to prevent any single branch from holding too much power.

Stephen Vladeck, a professor at Georgetown University Law Centre, said there was arguably more overt hostility between the White House and the courts than at any point in American history. But he said it remained to be seen if the charged rhetoric from the White House translated into Trump disregarding orders from the Supreme Court.

“I don’t think there’s any question we’re in a separation-of-powers crisis,” Vladeck said.

Trump has positioned himself as a unilateral force for change throughout his decade in politics, breaking with democratic tradition to present himself as a singular source of redemption as he warned of broad national decline. In accepting his party’s nomination at the Republican National Convention in 2016, he declared, “I alone can fix it”. During his first term in office, he frequently espoused an expansive view of presidential power. As tens of thousands of Americans were dying of Covid-19 in April 2020, Trump claimed his office gave him “ultimate authority” to forge ahead with a controversial plan to reopen the country.

“When somebody is the President of the United States, the authority is total and that’s the way it’s got to be,” Trump told reporters.

He also sought to test the boundaries of his office during his first term, but legal scholars say those moves pale in comparison with his maximalist interpretation of presidential power during his second stint in the White House. Trump has been implementing that view since his first day back in office, when he signed a flurry of executive orders. Since then he has fired inspectors general, frozen federal grants and loans, and directed mass firings of federal workers – all moves that some scholars say mark a notable departure from the way modern Presidents have wielded the powers of the office. He has also removed Democratic regulators from independent agencies such as the Federal Trade Commission and Equal Employment Opportunity Commission, despite a Supreme Court precedent that prevents the President from firing members without cause.

On the cusp of a constitutional crisis

Harrison Fields, a White House spokesman, said constitutional law experts should be more concerned about judges usurping the authority the constitution vested in the President and attempting to “deny the American people the executive actions they voted for”.

A senior Trump administration official said the administration did not view its moves as expanding the powers of the executive branch, but as using “what’s already available” – even laws like the Alien Enemies Act, which the administration has used to deport Venezuelan migrants, that have rarely been used by other Presidents.

“There’s rules and laws on the books that obviously other administrations have glossed over,” the official said. “We’re looking at it more in-depthly … about how to use the existing tools of the executive branch to really push whatever the President’s policy is.”

The official said these moves were planned throughout Trump’s campaign and described in the dozens of policy videos that were released leading up to the election.

Donald Trump's tariffs have stoked a global trade war. Photo / Getty Images

“We weren’t shy about it,” the official said. “We laid all of this out throughout the campaign and throughout the transition.”

The official said everyone in the White House had been involved in this effort, including Stephen Miller, the White House deputy chief of staff. Miller, the architect of Trump’s immigration policies, has emerged as one of the most prominent defenders of Trump’s boundary-pushing strategy.

Miller, who is not a lawyer, presented an expansive view of presidential power in February during a “civics lesson” to the press, invoking a clause of the constitution that says the executive power shall be vested in the President.

“He is the only official in the entire government that is elected by the entire nation,” Miller said. “The whole will of democracy is imbued into the elected President.”

Miller’s lesson came as he was pushing back on criticism that the administration had granted too much power to Elon Musk to slash government spending through the US DOGE Service, even though Musk had not been elected to office and Trump did not campaign heavily on these plans.

Miller’s comments drew on ideas that conservative groups have promoted for years about the power of the presidency, at a time when the slate of Supreme Court judges appears receptive to these theories. In July, the Supreme Court granted Presidents sweeping immunity from prosecution for official acts in a case that stemmed from efforts to prosecute Trump for allegedly trying to block the results of the 2020 election. Many conservative lawyers and groups see an opportunity to solidify the power of the presidency at a time when the Supreme Court has embraced an expansive view of presidential authority known as “unitary executive theory”.

Yet Trump’s response to the Supreme Court’s ruling in the case of Abrego García and his willingness to undermine the authority of judges has alarmed legal scholars, who have warned the US could be on the cusp of a constitutional crisis.

Elizabeth Goitein, the senior director of the Brennan Centre’s Liberty and National Security Programme, said Trump picked people for his administration who are “on board with this radical new theory of executive power”.

“It is a willingness to violate the separation of powers as established in the constitution,” she said.

Trump and his allies appear increasingly willing to undermine the authority of judges in their quest for power. Trump in March called for the impeachment of a judge who temporarily halted deportations being carried out under the rarely used Alien Enemies Act.

In February, he invoked a quote often attributed to the French general Napoleon Bonaparte as many of his executive orders were challenged in court.

“He who saves his country does not violate any law,” Trump wrote, first on his social media platform Truth Social, and then on X.