We seem to be in the middle of 16 constitutional crises at once. President Donald Trump and his allies are trying to kill an entire provision of the Constitution, cut Congress out of the federal budgeting process, and cut off agencies’ control of their computer systems.
Let’s imagine that all six of the Supreme Court’s Republican justices wake up tomorrow and decide that their many, previous decisions enabling Trump were wrong, and each pledge to do everything in their power to rein in the seemingly out-of-control executive that they helped create.
Even in this world, where the federal courts could be counted on to aggressively enforce the Constitution and any statutes that are intended to constrain Trump, the United States would still face a constitutional crisis.
The reason why is fairly basic: Courts are inherently reactive institutions. They do not preemptively tell the government how to operate, and they aren’t even allowed to advise the government on whether its planned actions are lawful. Rather, before a federal court can do anything at all, it must wait for the government to do something illegal, wait for a plaintiff to come along who is injured in some way by that illegal action, and then, if conditions are right, the court can intervene.
By the time that happens, permanent damage may already be done. To understand why, consider this example.
The Trump administration plans to essentially shutter the US Agency for International Development (USAID). Shutting down USAID is almost certainly illegal — the agency is funded by Congress, and the president cannot lawfully cut off congressional appropriations (including money set aside to run USAID) without legislative approval. Because of these facts, there’s also a lawsuit, known as American Foreign Service Association v. Trump, seeking to block these efforts to shut down USAID. And that lawsuit may ultimately succeed — the most recent development in that suit is a temporary court order blocking the Trump administration’s attempt to put USAID employees on leave.
By the time this lawsuit fully plays out, however, many of USAID’s employees may have already found new jobs. If the Supreme Court ultimately rules that the agency must continue to function, that decision could take months or years. And, by that point, the agency may have experienced such severe brain drain that it will be a shadow of its former self. (And that’s all assuming that Trump even complies with a court order reopening the agency.)
The Trump administration, in other words, will always be the first mover in a conflict between it and the courts. The federal judiciary can often stop someone who is already violating the law from continuing that behavior, but it can’t prevent the violation from happening in the first place.
Thus, even if we could trust these courts to apply the law fairly and impartially to a Republican administration — and, in a world with Trump v. United States, the decision that said it’s okay for presidents to commit crimes, we simply cannot — Trump and his people can do extraordinary damage before any judge has a chance to even look at what they have done.
Standing, explained
The reactive nature of the federal judiciary is not an accident, it is an integral part of its design. Under Article III of the Constitution, federal courts may only hear disputes involving live “cases” or “controversies” between a defendant and a plaintiff who claims they’ve been injured in some way by that defendant. This requirement is known as “standing.”
As the Supreme Court held in Lujan v. Defenders of Wildlife (1992), no one may file a federal lawsuit challenging the government’s actions unless they have suffered an “injury in fact” that is “fairly traceable” to the action that they are challenging.
This means that the Trump administration gets to act first, before anyone can even file a lawsuit trying to stop them. Elon Musk and his cronies at the Department of Government Efficiency (DOGE) could potentially crash the entire computer system used by air traffic controllers in the United States, and no court can do anything about it until someone whose flight is grounded — or, worse, someone whose loved one is killed in a plane collision — files a lawsuit alleging that they were hurt because of Musk’s actions.
Even after someone does have standing to file a lawsuit under Lujan, moreover, there’s no guarantee that this individual can obtain a court order that will meaningfully constrain the administration. That’s because the Supreme Court has placed even stricter restrictions on who is allowed to seek an injunction — a court order requiring the government to take a certain action or to cease an action it is already engaged in.
The seminal case is City of Los Angeles v. Lyons (1983). In that case, Los Angeles police officers pulled over Adolph Lyons for a broken taillight, and eventually placed him in a chokehold. Lyons sued, seeking an injunction forbidding the LAPD from using such a chokehold again “except in situations where the proposed victim of said control reasonably appears to be threatening the immediate use of deadly force.”
But a majority of the Court concluded that Lyons could not seek an injunction at all. “Past exposure to illegal conduct,” Justice Byron White wrote for the Court, does not permit someone to seek an injunction. Rather, “Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.”
It was not enough, in other words, for Lyons to show that he had been a past victim of an illegal chokehold. He had to show that the LAPD were likely to place him in another chokehold at some point in the future.
The implications of the Lyons decision for much of the Trump administration’s shenanigans are pretty obvious.
Suppose, for example, that Musk introduces some glitch into the Treasury Department’s payment systems that causes it to randomly fail to make payments to 1 percent of all Social Security beneficiaries every year. Any one of those beneficiaries should be able to obtain a court order requiring the government to pay them what they are owed, but could they obtain an injunction seeking to undo Musk’s action? Probably not, because no one whose payments were cut off would be able to show that they are likely to have their payments cut off again a second time.
The courts may soon grow even weaker than they already are
There’s an ongoing debate with the courts about just how broadly any injunction can sweep. One uncertain question is whether the Supreme Court will continue to allow lower court judges to issue “nationwide injunctions” that attempt to shut down an illegal federal policy altogether.
In recent years, some lower court judges have claimed the power to enjoin the entire federal government when they believe it is acting illegally, effectively setting a new policy for the entire nation. Such injunctions, for example, were a particular thorn in former President Joe Biden’s side, as right-wing judges would often use them to block his immigration and other policies.
The upside of allowing a single trial judge to issue such an order is that, if the government’s action actually is illegal, it will be promptly shut down. The downside is that these nationwide injunctions are often issued by judges with idiosyncratic or highly partisan views, and can sabotage an administration that is not actually breaking any laws.
Some members of the Supreme Court, most notably Justice Neil Gorsuch, have railed against these nationwide injunctions — claiming that a single outlier judge should not have this kind of power. According to Gorsuch, injunctions are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit,” not to allow one low-ranking judge to set national policy.
There are strong arguments in favor of Gorsuch’s position, but if Gorsuch ultimately prevails in this fight, it will mean that lower court judges will grow even more powerless against the Trump administration. They will still be able to issue narrower orders prohibiting the government from taking a particular action against a particular plaintiff. But they will no longer be able to order the Trump administration as a whole to abandon an illegal policy altogether.
The courts typically depend upon voluntary compliance
Unlike lower courts, the Supreme Court clearly has the power to declare how the law should apply to the entire federal government. But there are also limits to the Supreme Court’s ability to enforce its decisions against non-parties to a particular lawsuit.
When the Supreme Court declares a particular action illegal, the government typically stops engaging in any similar actions because it knows that it will lose any lawsuit challenging those actions now that the justices have spoken. But what happens if the government decides to only narrowly comply with the Court’s decision?
Think of it this way. Suppose that John is a Social Security beneficiary whose benefits are illegally cut off by DOGE. Now suppose that John brings a case to the Supreme Court, and obtains a decision holding that DOGE’s action was illegal. Ordinarily, the government would also start paying benefits to people similarly situated to John, rather than making each of them file their own lawsuit.
But what if the government only narrowly complies with the Supreme Court’s order, paying benefits to John and John alone? Perhaps some of the other people whose Social Security benefits were cut off could join together in a class action lawsuit that would allow them all to present their case to a court at once. But that class action might only apply to people with lost Social Security benefits, and not to other individuals or businesses who had other payments cut off by DOGE.
The Trump administration, in other words, could attempt to grind down people hurt by its decisions by forcing them each to bring their own lawsuits, each of which could take months or even years to complete.
There is a very famous precedent for this kind of massive resistance to a Supreme Court decision. In the 10 years following Brown v. Board of Education (1954), public school desegregation almost completely stalled in much of the country. By 1964, just one in 85 Black students in the South attended an integrated school.
One of the biggest reasons why is that Southern school districts refused to voluntarily comply with Brown. Instead, they insisted that a Black student who wanted to attend an integrated school had to file a new lawsuit and obtain a court order letting them in. Terrorist groups like the Ku Klux Klan also helped ensure that few Black families were willing to be plaintiffs in such lawsuits.
In fairness, it is unlikely that DOGE will send roving bands of hooded terrorists to hound anyone who tries to sue them. But the fact remains that the Supreme Court cannot apply its orders to parties that are not already before it, at least until someone files a new lawsuit.
The “least dangerous” branch
Finally, there’s a question looming over everything Trump does: What if he simply refuses to comply with a Court order?
As Alexander Hamiltion famously wrote in the Federalist Papers, courts have no internal mechanism to enforce their decisions. They “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
When a losing litigant refuses to comply with a federal court order, that order is enforced by the US Marshals Service, a law enforcement agency housed in the US Department of Justice. The Marshals, in other words, are executive branch officials subordinate to the president. So Trump could theoretically order them not to enforce a court decision against him.
If that happens, the United States is in truly uncharted waters. Congress could potentially impeach Trump for refusing to obey the court order, but given Republican control of both houses of Congress, impeachment is unlikely to succeed. Heck, impeachment failed even after Trump incited a mob to attack the US Capitol and threaten the lives of the members of Congress themselves. So it’s hard to imagine a Republican Congress standing in Trump’s way over something like refusal to follow a court order.
Even if we never have a showdown over whether Trump will follow the courts’ decisions, the judiciary only has limited power. Courts can block many of Trump’s illegal actions, but only after he and his subordinates have done considerable harm.
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