Federal courts tend to avoid tackling unprecedented questions that strike at the heart of the separation of powers — the large and small mysteries left by the framers (and amenders) of the Constitution.
Judges at every level are painfully aware that their decisions in cases of “first impression” risk unintended consequences that could destabilize the nation’s balance of power. So when those questions present themselves, they often find ways to resolve the cases without issuing far-reaching rulings, or making “new law.”
Then came Donald Trump.
Since January, Trump’s effort to concentrate unrivaled power in the executive branch has forced courts to wrestle — often on emergency timelines — with issues no court has ever addressed. But even that novel dynamic has been supercharged in recent days.In just the past month:
— The Supreme Court agreed to hear a case that will decide for the first time whether the president’s emergency powers allow him to unilaterally impose tariffs on international trading partners — a case that could upend the world economy and weaken Congress’ control over the levers of American trade.
— The high court also took up a frantic effort by foreign aid groups to block Trump from slashing $4 billion in funding authorized by Congress — a test of the president’s ability to wrest control of the power of the purse by “impounding” funds without lawmakers’ approval. In one week, those funds will lapse without the court’s intervention.
— A federal judge in Washington, D.C. ruled that Trump’s attempted firing of Federal Reserve board member Lisa Cook was illegal, saying he failed to allege a sufficient “cause” to justify her removal — and denied her due process rights. It was the first courtroom test of any president’s ability to remove Senate-confirmed members of the Federal Reserve board. The Supreme Court is now weighing the case.
— The D.C. Circuit Court of Appeals reinstated Rebecca Slaughter, a Democratic member of the Federal Trade Commission whom Trump purported to fire, only for the Supreme Court to re-fire her. The high court also set up a decades-in-the-making showdown over the president’s power to fire board members thought to be independent from political control.
— A federal judge in California ruled that Trump’s deployment of the National Guard on the streets of Los Angeles resulted in violations of the Posse Comitatus Act, which prohibits the use of military troops for domestic purposes.
— The Trump administration asked the 5th Circuit Court of Appeals to bless the president’s invocation of the Alien Enemies Act — a rarely used wartime power — to abruptly deport Venezuelan nationals he deems members of a transnational gang after an appeals panel ruled against the move.
In each case, judges are being forced to confront unprecedented claims of presidential power in ways they’ve never had to consider.
The results of these cases could empower Trump to assert his will more aggressively than any president in history, but just as significantly, they are guaranteed to leave a legal legacy that will shape the way future presidents can wield the power of their office. And Trump still has three years to poke, prod and stress test the system of government in ways that have thrilled his supporters and stoked existential dread about the unraveling of the republic from his critics.