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Trump 47 and the Judicial Burdens of Presidential Unilateralism

Published online by Cambridge University Press:  13 April 2026

Jasmine Farrier Open the ORCID record for Jasmine Farrier [Opens in a new window]
Jasmine Farrier*
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Political Science, University of Louisville , Louisville, USA
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Abstract

In 2025, President Donald Trump expanded his own powers through unprecedented interpretations of congressional statutes and Article II of the US Constitution. Ensuing waves of litigation and a record number of emergency-relief applications by the administration to the US Supreme Court placed extraordinary pressure on the federal judiciary. Although US district judges have delayed or halted a range of significant administrative actions, this article’s overview of Trump 47 in court highlights three different scholarly approaches that doubt that the US Supreme Court alone can or ultimately will reverse the administration’s agenda. First, the Roberts Court’s emergency docket decisions thus far comport with recent polarization trends in presidential-power cases. Second, the US Supreme Court lacks institutional capacity and consistent jurisprudence to challenge each area of alleged presidential overreach. Third, the administration’s use of broad authorities previously delegated by Congress serves as a reminder that constitutional interpretation and executive-branch powers are rooted in the broader political system. Congress cannot easily retract granted authority but curtailing presidential unilateralism requires more than litigation.

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Understanding the Early Trump 47 Presidency
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PS: Political Science & Politics , First View , pp. 1 - 10
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2026. Published by Cambridge University Press on behalf of American Political Science Association

In 2025, the complex US separation-of-powers system was reduced to a rapid-fire dialogue between only two governmental branches: the executive and the judicial. From Inauguration Day through December, President Donald Trump issued 225 executive orders and 114 proclamations, and he declared 10 new national emergencies.Footnote 1 These actions spawned approximately 600 legal challenges. Approximately 30% of district court decisions so far have ruled against the administration or halted its actions as litigation continued (Schwartz Reference Schwartz2026), but the US Supreme Court eliminated a key tool of federal judges by issuing an emergency ruling against the power of lower courts to issue nationwide injunctions. Although the US Supreme Court will issue merit decisions in 2026 on some of the most high-profile controversies, other accusations of illegal executive-branch conduct are unlikely even to reach any federal courts, including US strikes in Iran, against the Islamic State in Somalia and Nigeria, against alleged drug smugglers in the Caribbean and Pacific Ocean, seizures of Venezuelan oil tankers, and the capture of Venezuelan President Nicolás Maduro. These military actions in 2025 and early 2026 were not authorized by Congress but they are unlikely to develop into justiciable cases.Footnote 2

A year after his inauguration, there is no public indication that President Trump plans to reverse course on any major domestic or foreign policy initiative. Neither does it appear that the current or post-midterm-election Congress will challenge him successfully through normal legislative means (with supermajorities needed to overcome filibusters and vetoes). As some of the most consequential unilateral actions of the administration continue to move through the federal judicial system, we then must ask whether the US Supreme Court alone can or will attempt to halt extreme presidential powers? Scholarship on the Court and separation-of-powers jurisprudence, from three methodological approaches, indicates that the answer is “no.”

First, the US Supreme Court’s current Republican-appointed supermajority is unlikely to side repeatedly against President Trump because “Roberts justices are especially and uniquely willing to put the brakes on a president who does not share their partisan affiliation, while far less likely to check a president of the same party, especially if the president appointed the justice” (Brown and Epstein Reference Brown and Epstein2023, 235).Footnote 3 Even as the US Supreme Court’s deference to presidential and executive-branch claims of authority have declined generally since the 1980s (Epstein and Posner Reference Epstein and Posner2018), an aggregate study of presidential directives spanning almost 80 years found “no evidence that presidential unilateralism is responsive to the ideological composition of the judiciary” (Evert, Kaufman, and Rogowski Reference Evert, Kaufman and Rogowski2025, 3).

Second, US Supreme Court jurisprudence on separation-of-powers cases is intermittent, inconsistent (Huq and Michaels Reference Huq and Michaels2016), and particularly uneven regarding executive orders (Newland Reference Newland2015). It is unclear if or how the Justices will apply recent “major-questions doctrine” precedents that emphasized Congress’s statutory authority and legislative intent over expansive interpretations of executive domestic powers by the administrations of former Presidents Barack Obama (Clean Power Plan) and Joe Biden (student-loan debt cancelation).Footnote 4 The Court also has long supported expanded executive-branch power across issues that directly and indirectly fall under foreign policy and national security from the Cold War through the early-twenty-first-century War on Terror—especially when these powers can be traced to the delegation of broad authority by Congress (Fisher Reference Fisher2017; Kassop Reference Kassop2003; Pious Reference Pious2007).

Third, no volume of cases can reverse branch imbalances and systemic separation-of-powers dysfunctions. Litigation can challenge and mitigate certain types of individual- and/or group-level harms from executive-branch policies but cannot force members and leaders of Congress to defend their own prerogatives. Relying on judicial rulings rather than direct political action to challenge presidential power can even backfire, leaving Congress more disadvantaged relative to the executive branch (Bell Reference Bell2025; Farrier Reference Farrier2019). Recent decisions also have served “to aggrandize the courts, which have claimed decision-making authority previously exercised by agencies or the political branches” (Metzger Reference Metzger2025, 89). Dubious US Supreme Court supremacy claims often originate outside of the judicial system, serving short-term political interests rather than a robust separation-of-powers system (Whittington Reference Whittington2007). Yet, the reality of constitutional development, especially in this area of jurisprudence, is more complex than what the justices determine in any one case. Scholars have shown “the importance of nonjudicial actors in altering, preserving, interpreting, applying, and enforcing the Constitution” (Devins and Whittington Reference Devins and Wittington2005, 7; see also Chafetz Reference Chafetz2017; Devins and Fisher Reference Devins and Fisher2015; Zug, Kleinerman, and Ewing Reference Zug, Kleinerman and Ewing2026).

Even when the US Supreme Court rules against novel presidential expansions, the reasoning is a reminder that Congress holds the keys to executive powers. The landmark majority decision in Youngstown Sheet and Tube v. Sawyer (1952) denied President Harry Truman’s executive order to nationalize steel mills during the Korean War because Congress had considered and rejected granting the authority. Justice Robert Jackson’s concurring opinion stated that presidential authority is strongest when the US Constitution and Congress both grant powers to presidents and weakest when they do not.

Many of President Trump’s second-term actions fall outside of these two realms because they were neither specifically authorized by Congress nor did Congress demonstrate rejection and denial of the presidential power in question. Justice Robert Jackson described this type of situation as a “zone of twilight,” stating that “congressional inertia, indifference, or quiescence may sometimes at least as a practical matter, enable, if not invite” independent presidential interpretation of his own powers.Footnote 5 Decades after Youngstown, Dames and Moore v. Regan (1981) updated this interpretation of congressional silence to favor presidential discretion. In Dames, the US Supreme Court ruled in favor of President Jimmy Carter’s novel use of the International Emergency Economic Powers Act (IEEPA). The Court did not find specific congressional authorization for Carter’s action and relied on inferences from various other statutes as well as its own precedents favoring presidential power.Footnote 6

If Congress had supermajorities interested in defending its powers and place, there would be less pressure on federal courts to do it without enforcement resources and capacity. Members of Congress can attempt to terminate national emergencies, revise extant laws, trim delegations of power, and use various other legislative maneuvers to challenge Trump’s (or any president’s) actions. Of course, successful pushback is unlikely in the short term because it would require the House and Senate to overcome political barriers, including Republican loyalty to Trump, chamber differences (especially the Senate filibuster), and—most formidably—constitutional requirements that two thirds of each chamber are needed override a veto.

It also is unlikely that Trump will retreat from extreme new iterations of “constitutional hardball,” defined as high-stakes formal institutional norm breaking (Tushnet Reference Tushnet2004). Scholars have long noted the bipartisan use of executive orders, memoranda, proclamations, and other unilateral actions to control the direction of national public policy. The officials most capable of reversing and reshaping executive-driven public policy, ironically, are future presidents (Mayer Reference Mayer2001; Rudalevige Reference Rudalevige2021; Thrower Reference Thrower2017). For example, Presidents Obama, Trump 45, Biden, and Trump 47 and their administrations each rescinded their predecessors’ orders and/or rules on transgender military enlistment and service (Bromwich Reference Bromwich2017; Garamone Reference Garamone2021; Wentling Reference Wentling2025). As challenges to these and other executive actions make their way through federal courts, emergency rulings provide insights about what the US Supreme Court will decide on the merits in the new term that began in October 2025.

EARLY TRUMP WINS ON THE EMERGENCY DOCKET

Because federal judges nominated by presidents of both parties (including Trump 45) frequently ruled against Trump 47, the US Supreme Court received 32 emergency-relief applications from the administration to stay adverse rulings (Cheney Reference Cheney2025a; Wheeler Reference Wheeler2025). Traditionally used for pending executions, these applications are submitted to US Supreme Court Justices assigned to each circuit, before or after the cases have been fully considered by appellate courts.Footnote 7 The assigned Justice may refer to the full Court and has done so for all applications by presidents. The Court evaluates these applications on the likelihood of their taking the case later via certiorari and ultimately ruling for petitioners, as well as whether and to whom the previous decision could cause harm as appeals continue. US Supreme Court emergency rulings come before the case could reach it on the merits. Although these decisions are preliminary, the effects are immediate and may be significant in many cases (Baude Reference Baude2015; Kastellec and Taboni Reference Kastellec and Taboni2025; Vladeck Reference Vladeck2023).

Although the Trump administration strategically filed emergency applications (it did not for the majority of adverse lower-court rulings), the volume and success rate are high (Vladeck Reference Vladeck2025a). “The cases it has chosen have been not only successful but also broadly impactful, and the focus has been on getting the policy changes into place” (Novkov Reference Novkov and Schweber2026, 46). This quantity and substance contrast with Trump’s predecessors. George W. Bush (five) and Barack Obama (three) filed eight total emergency applications across 16 years. Trump 47 already exceeded Biden’s four years (19) and is on pace to surpass his own first term (41).Footnote 8 As of late December 2025, the US Supreme Court decided for the executive-branch’s position at least partially in 23 decisions of 32 applications (i.e., two pending, five denied, three withdrawals, and one dismissal).Footnote 9 The US Supreme Court’s approach to these and other executive-branch actions—in light of their own precedents, circuit splits (Beim and Rader Reference Beim and Rader2024), and Congress’s current passivity—will become clearer in the new term because it takes a limited number of cases on the merits.

In addition to the unusual volume of these types of cases, short majority decisions on emergency applications often lack details to guide other federal judges, which they have lamented publicly and privately.Footnote 10 Thus far, all but four announced dissents have come from a combination of Justices Sotomayor, Kagan, and Jackson, who were nominated by Democratic presidents. They all have joined one another’s dissents more than 12 times, with themes including civil rights and liberties (Sotomayor), directly favoring the administration (Jackson), and the majority’s lack of attention to precedent and congressional authority (Kagan).Footnote 11 The latter argument is complicated by the fact that almost 50 years ago, Congress delegated broad emergency powers to the president, which has allowed President Trump to move aggressively across policy areas previously considered Congress’s legislative domain.

INVOKING EMERGENCY POWERS

Extant statutes could allow Trump or any president to unlock up to 150 statutory powers (Brennan Center for Justice 2025). Congress passed the National Emergency Act (NEA) in 1976 to close old emergency declarations and—although not its original intention—created a new process for unilateral presidential decisions without any definition of what “emergencies” entail (Edelson Reference Edelson2013). In 1977, Congress passed IEEPA, a separate presidential authority over international economic transactions during a declared national emergency that until 2025 was never invoked as a tariff authority (Webster Reference Webster2021).

The practical ability of Congress to control Trump’s (or any president’s) use of these authorities is complicated by the landmark Immigration and Naturalization Service v. Chadha (1983), in which the US Supreme Court overturned legislative vetoes built into hundreds of laws, including the NEA and the IEEPA. Congress included legislative vetoes in these and other delegations of power to retain some control over specific uses by the executive branch. Before Chadha, Congress could end emergencies by passing concurrent resolutions that would not go to the president, among other legislative veto procedures.Footnote 12 After Chadha, unless a president reverses himself or the US Supreme Court rules against him on the merits, the burden will return to the House and the Senate to pass bills or joint resolutions to close the emergencies, which likely would prompt a veto. This scenario occurred in 2019, during Trump’s first term, when Congress passed legislation to close an emergency but failed to reach two thirds of both chambers to override his veto.Footnote 13

During the Biden administration, congressional Republicans—with some Democratic support—considered changing the open-ended nature of emergency statutes, but that effort failed and has not returned.Footnote 14 In 2025, the Senate voted twice with slim majorities to close two emergencies related to Canada and Brazil (under rules that avoided a filibuster), but House Republican leadership blocked a similar vote until a few of its members voted with the Democrats to force a floor roll call in mid-February, 2026. The two chambers’ slim majorities of tariff critics make it unlikely that these measures would be overridden if President Trump received and vetoed the legislation (Bade and Beavers Reference Bade and Beavers2026).Footnote 15

Tariffs

On Inauguration Day, January 20, 2025, President Trump declared an emergency related to international drug cartels under the IEEPA and proclaimed a national emergency at the US Southern border under the NEA. These actions were followed by another series of executive orders in early February that invoked sections of the Trade Act of 1974 to impose trafficking tariffs on Mexico, Canada, and China.Footnote 16 Separately, in early April 2025, the Trump administration imposed a series of worldwide retaliatory tariffs to address trade deficits that caused an “unusual and extraordinary threat to the national security and economy of the United States.”Footnote 17

The US Court of International Trade (CIT) heard a challenge brought by several manufacturers claiming economic injuries. The CIT found for the plaintiffs due to the unbounded nature of the tariffs and the lack of new facts to meet the required threat threshold. By reviewing legislative histories, the three-judge panel ruled that a trade deficit stretching back decades does not fit the definition of emergency under the IEEPA. On June 10, 2025, the US Court of Appeals for the Federal Circuit granted a stay as the Trump administration appealed.Footnote 18 The Appeals Court ruled against the administration’s use of the IEEPA in a 7-4 split decision on August 29, noting that the terms “tariff,” “tax,” and “duty” were not in the statute. The majority stated, therefore, that IEEPA tariffs fell under the new major-questions doctrine developed during the past decade when the presidential stretch of delegated powers had “vast economic and political significance.” The Appeals Court also stayed its own decision.Footnote 19

The US Supreme Court in a 6-3 decision announced in February, 2026, held that the President cannot invoke IEEPA for tariffs. Chief Justice John Roberts wrote for the majority that “[w]hen Congress has delegated its tariff powers, it has done so in explicit terms and subject to strict limits.” This decision’s multiple concurrences and dissents demonstrate continuing jurisprudential divisions within the conservative Supreme Court majority regarding presidential-power cases. President Trump announced new tariffs using a different authority the same day (section 122 of the Trade Act of 1974).Footnote 20 However, federal courts have long deferred to other executive uses of congressionally delegated trade power under the Tariff Act of 1930, the Trade Expansion Act of 1962, and the Trade Act of 1974. The US Supreme Court’s merits decision on the IEEPA likely will not be the last word on the issue. As noted in a recent Congressional Research Service report, regardless of the Court’s decisions, “Congress is ultimately responsible for determining what tariff authorities the President should have and what limitations those authorities place on presidential discretion” (Zirpoli Reference Zirpoli2025).

Deportations

Another Inauguration Day proclamation declared an “invasion” at the Southern border.Footnote 21 Subsequent deportations included alleged MS-13 (El Salvador) and Tren de Aragua (TdA, Venezuela) gang members. In March 2025, Trump invoked the Alien Enemies Act (AEA) of 1798 (used only three times in US history) in a proclamation targeting the TdA. The Trump administration called these alleged gang members “invaders” acting in coordination with the Venezuelan government.Footnote 22 President Trump and some Republicans in Congress called for impeachment and investigation of a federal judge who tried in April 2025 to stop some of the initial deportation flights for lack of due process; however, the US Supreme Court ruled specifically that Kilmar Albrego Garcia’s removal was illegal.Footnote 23 After a May 2025 US Supreme Court emergency docket opinion that, among other issues, extended a deportation pause requested by the American Civil Liberties Union (but not ruling directly on the constitutionality of the administration’s use of the law), President Trump attacked the Court on Truth Social, stating in all caps: “The Supreme Court won’t allow us to get criminals out of our country!”Footnote 24 More than half a year later, new analysis of deportation cases reveals that the volume of arrests have overwhelmed the federal and immigration court system, leading to many releases (Jordan and Barrett Reference Jordan and Barrett2026).

In September 2025, a three-judge panel of the US Court of Appeals for the Fifth Circuit ruled 2-1 that President Trump’s invocation of the AEA of 1798 was illegal. The preliminary injunction was vacated later the same month by the full Appeals Court in a 16-1 ruling; meanwhile, the US Supreme Court’s earlier ban remains in place.Footnote 25

The administration also has prioritized revoking legal immigrants’ Temporary Protected Status (TPS), which expanded under the Biden administration. The Immigration Act of 1990 placed status authority (both granting and revoking) exclusively in the executive branch. Today, the discretion falls to the Secretary of the US Department of Homeland Security (DHS), in consultation with other governmental officials (e.g., the Attorney General) and otherwise is not reviewable by federal courts except if challenged on Administrative Procedure Act or due-process grounds.Footnote 26 Secretary of Homeland Security Kristi Noem and the administration intend to or already has revoked more than one million TPS designations of approximately 1.3 million holders. The revoked designees are from 13 countries, with the majority from Venezuela and Haiti. As of February 2026, several district courts ordered deportation pauses for Haitian TPS holders as well as those from Nepal, Honduras, Nicaragua, Syria, South Sudan, and Burma.Footnote 27 However, the US Supreme Court previously ruled in emergency applications to allow TPS programs to lapse (VanSickle and Liptak Reference VanSickle and Liptak2025).

Another deportation controversy concerns sending migrants who were convicted of serious crimes in the United States to countries other than their origin. A district court ruled that migrants from Myanmar, Vietnam, and Cuba were entitled to challenge this process and to have an opportunity to express their fear of mistreatment in both their home country and potential third countries. The US Supreme Court held for the administration without explanation. Joined by Justices Kagan and Jackson, Justice Sotomayor wrote a 19-page dissent stating that the administration did not demonstrate traditional elements of emergency relief.Footnote 28

Beginning in June 2025, a new wave of immigration raids, stops, and seizures by federal agents in Los Angeles included controversial rationales such as apparent race or ethnicity, language and accent, type of work, and/or being present in certain locations known for immigrant and/or day labor. In July, a US district judge enjoined these tactics under the Fourth Amendment’s protection against unreasonable search and seizure. The Trump administration filed an emergency application to stay the ruling while appeals continued, which the US Supreme Court granted without explanation. Justice Kavanaugh wrote a concurrence that, among other points, emphasized that the specifics of immigration law and enforcement are for the national political branches to resolve, not the judiciary. Justice Sotomayor’s dissent stated that the majority failed to adhere to Fourth Amendment precedent, including for alleged mistreatment of US citizens.Footnote 29

By the end of November, 2025, according to Politico, at least 225 judges—including 35 appointed by President Trump—ruled against depriving people of due process to seek release from detention in more than 700 deportation cases (Cheney Reference Cheney2025b). Decades of tension between the US Supreme Court’s majority and the lower courts, particularly between the US Supreme Court and the US Courts of Appeals, is clear in immigration-related cases (Law Reference Law2010); however, key areas of administrative authority stem from previous congressional delegations in immigration law.

As these cases continued through federal courts, Immigration and Customs Enforcement (ICE) tactics in Minneapolis brought new waves of political scrutiny and litigation. ICE agents fatally shot Renee Good and Alex Pretti—both of whom were US citizens protesting immigration enforcement—in January 2026. DHS spokesperson Tricia McLaughlin defended ICE agents against “a highly coordinated campaign of violence against our law enforcement” (Hickman et al. Reference Hickman, Hesson, Heath and Cooke2026). A similar defense of previous federal law enforcement shootings in 2025 has not held up in federal courts (Berzon and McCann Reference Berzon and McCann2026). Additional immigration-related enforcement issues led to the Court’s second major rebuke of the Trump administration.

Using the National Guard for Law Enforcement

In June 2025, President Trump invoked a congressional statute to federalize and send approximately 4,000 National Guard troops and approximately 700 US Marines to Los Angeles for 60 days to protect federal officers who were performing immigration raids and to protect federal property. California Governor Gavin Newsom called these actions unlawful.Footnote 30 A district court ruled that President Trump acted illegally, but the decision was overturned by a three-judge panel in the Ninth Circuit Court of Appeals that stated that the pockets of protest violence supported the federal government’s claims.Footnote 31 After remand and a trial, the district court ruled on the merits that the Trump administration violated the Posse Comitatus Act of 1878 that “prohibits the use of the U.S. military to execute domestic law.”Footnote 32 That order was stayed by a three-judge Ninth Circuit panel while the Trump administration appealed.

Beginning in September 2025, President Trump continued to order the National Guard into cities spanning Portland, Oregon (i.e., redeployment from California) and Chicago to combat alleged “domestic unrest,” especially near ICE facilities. Another district court judge issued an emergency temporary restraining order to halt the deployment of the National Guard and to exclude redeployment from any state, as well as Washington, DC, ruling that both actions were unlawful and unconstitutional, citing federalization law and the 10th Amendment.Footnote 33 In response, Trump said that he was instead considering utilizing the Insurrection Act of 1807, last used in 1992 (Wolfe Reference Wolfe2025). The Portland order was stayed pending an en banc hearing by the Ninth Circuit Court of Appeals. In the Chicago deployment, a district court judge issued a temporary restraining order and the Trump administration filed an emergency application to stay that order (Shutz Reference Shutz2025; Vladeck Reference Vladeck2025b).

In late December 2025, a 6-3 US Supreme Court majority denied the application, stating that “at this preliminary stage, the Government has failed to identify a source of [congressional, constitutional, or state] authority that would allow the military to execute the laws in Illinois.” Justice Kavanaugh noted in a concurrence footnote that the decision “does not address the president’s authority under the Insurrection Act.” Justice Alito’s dissent, joined by Justices Thomas and Gorsuch, concluded that “under the Court’s interpretation, National Guard members could arrest and process aliens who are subject to deportation, but they would lack statutory authorization to perform purely protective functions.”Footnote 34

Unlike the rapid enforcement tactics that the Trump administration used in its deportation goals, its new and highly controversial reinterpretations of birthright citizenship have not gone into effect. Although the US Supreme Court will hear the case on the merits docket on April 1, 2026, the emergency application filed by the administration to the Court focused instead on nationwide injunctions.

BIRTHRIGHT CITIZENSHIP AND NATIONAL INJUNCTIONS

President Trump issued Executive Order 14160 on Inauguration Day to deny birthright citizenship for children born of parents who are undocumented, those in the United States as tourists, or those under temporary US Department of State status.Footnote 35 This action challenged the clear and unambiguous meaning of the first clause of the 14th Amendment and the US Supreme Court precedent US v. Wong Kim Ark in 1898: that is, anyone born in the United States is a US citizen (Nackenoff and Novkov Reference Nackenoff and Novkov2021).Footnote 36

After Trump’s order was subject to three nationwide judicial injunctions by district courts, the administration’s emergency stay application to the US Supreme Court focused on injunctions rather than the order’s constitutionality. Ruling for the administration, the Court said “[u]niversal injunctions likely exceed the equitable authority that Congress has given to federal courts.”Footnote 37 The Court suggested class actions as an alternative to universal injunctions. A few weeks later, a federal district court in New Hampshire certified the first class-action suit.Footnote 38 By October 2025, a three-judge panel of the US Court of Appeals for the First Circuit became the fifth federal court since June to block the original order’s enforcement (Casey Reference Casey2025).

In addition to carving out exceptions to birthright citizenship by starting the constitutional-amendment process if Congress agrees with the Trump administration, it retains the power to clarify nationwide injunctions (i.e., the US Supreme Court invoked the Judiciary Act of 1789). In a Senate hearing earlier in 2025, witnesses noted that the dramatic rise in nationwide injunctions across recent presidencies did not stem from a concerted campaign by district court judges but rather from the volume of litigation against aggressive new executive-branch powers across both parties’ administrations.Footnote 39 “Although this decision formally relied solely on statutory interpretation, Trump v. CASA undoubtedly will have a significant impact on the American constitutional framework by shifting power from the lower federal judiciary to the executive branch” (Pohlman Reference Pohlman and Schweber2026, 62).

One area of this expansion that has received extended scholarly attention is the unitary executive theory (UET). Although it is defined in different ways, the core assumption of UET is that Congress cannot place certain types of limits on executive-branch administration and power.

UNITARY EXECUTIVE THEORY IN ACTION

The Trump administration asserts that it can downsize government, rescind appropriations, and fire heads of independent agencies and commissions without cause or prior congressional approval. These claims amplify the UET (Crouch, Rozell, and Sollenberger Reference Crouch, Rozell and Sollenberger2020) and are central to Project 2025 (Dans and Groves Reference Dans and Groves2025). One strain of UET emphasizes hierarchical authority over all executive-branch personnel (Calabresi and Yoo Reference Calabresi and Yoo2008). A more maximalist approach endorses executive supremacy over the other two branches in certain spheres, such as national security (Savage and Gamio Reference Savage and Gamio2026; Yoo Reference Yoo2009). Unlike other areas of contested administrative authority that flow directly or indirectly from congressional statutes, UET untethers executive power from Congress. Thus far, emergency docket cases concerning restructuring the federal bureaucracy without prior congressional approval largely favored the administration (Novkov Reference Novkov and Schweber2026).

Department of Government Efficiency Initiatives

Dozens of lawsuits against the Department of Government Efficiency (DOGE) filed in the early months of the administration span federal personnel actions, data privacy, dismantling parts of federal agencies, canceled and paused university research expenditures, and more. The House and the Senate, in narrow party-line votes, eventually agreed to a $9.4-billion rescission request by the Trump administration after initially resisting statutory requirements on rescission procedures.Footnote 40 The official DOGE website claims that it unilaterally eliminated $30.1 billion in savings and 1.9 million words from regulations and internal guidance documents.Footnote 41 The US Supreme Court ruled on two DOGE-related emergency applications from the Trump administration in early June 2025: restoring DOGE’s access to Social Security dataFootnote 42 and halting Freedom of Information Act discovery into DOGE’s leadership and structure.Footnote 43 In September 2025, the Court also allowed via emergency application a novel “pocket rescission” maneuver to withhold foreign-aid appropriations at the end of the fiscal year.Footnote 44 The administration’s controversial premise of many DOGE actions is similar to firing leaders of independent commissions: they assert that Congress cannot legislate restrictions in certain presidential spheres.

Removing Independent Administrative Leadership

In 2025, the Trump administration unilaterally removed members of the National Labor Relations Board (NLRB), the Merit Systems Protection Board (MSPB), three of five Consumer Product Safety Commissioners, and a Federal Trade Commissioner outside of causes specified by law. One US Supreme Court 6-3 emergency stay decision “reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”Footnote 45 On the Federal Trade Commission (FTC) case, Justice Kagan in dissent accused the majority of “raring” to overturn Humphrey’s Executor v. US (1935), a unanimous decision that protected Congress’s legislative authority to proscribe political and policy firings in laws establishing independent executive agencies. Justice Kagan said “our emergency docket should never be used, as it has been this year, to permit what our own precedent bars…[nor] transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”Footnote 46 The FTC case was heard on the merits in December 2025, with questions from the majority indicating a likely overturning of Humprey’s. Footnote 47

A different case concerns Board of Governor protections in the Federal Reserve Act of 1913. In 2025, President Trump threatened to fire Federal Reserve Chair Jerome Powell and—for the first time in its history—attempted to fire a member of the Board of Governors, Lisa Cook, for alleged personal financial misdeeds prior to her nomination. In one of these cases concerning another agency, the US Supreme Court acknowledged the Fed’s difference as a “uniquely structured, quasi-private entity.”Footnote 48 On the Cook case, a 32-page amicus brief by former Fed chairs and economic officials from several administrations defended the central bank’s independence.Footnote 49 The Court rejected the Trump administration’s emergency application and upheld the district court stay.

On January 21, 2026, the US Supreme Court heard oral arguments on the merits of the case. The administration acknowledged that it cannot remove Cook for policy reasons. It argued that its allegations of financial impropriety against Cook before her nomination are valid for firing for cause, and she was not owed formal notice or a hearing. More significantly for executive–judicial relations was the Solicitor General’s argument that federal courts have no place in such proceedings. In one exchange, Justice Kavanaugh predicted that if the administration won in this case, Trump’s own appointees would be fired by a subsequent president.Footnote 50 Although the focus of this case is on President Trump’s power to fire appointed officials, the origin of these restrictions is congressional law. That fact was not the focus of the case as much as the long-standing assumption that related litigation could be reviewed by federal courts. Another area of administrative attack on Congress’s power to structure the executive branch concerns the US Department of Education.

Dismantling the US Department of Education

President Trump’s executive orders, rescinded funding, and its own litigation have targeted all levels of education (Smith-Schoenwalder Reference Smith-Schoenwalder2025). In addition, Executive Order 14242, among other sections, empowered the US Secretary of Education to “take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities.”Footnote 51 A district court issued a preliminary injunction in late May 2025, which was upheld by the US Court of Appeals for the First Circuit. On July 14, the US Supreme Court issued a one-paragraph emergency application order, without explanation, that allowed large-scale personnel reductions to continue as litigation proceeded. Justice Sotomayor, joined by Justices Kagan and Jackson, issued an 18-page dissent: “Only Congress has the power to abolish the Department.”Footnote 52

CONCLUSIONS ON THE NEW CONSTITUTIONAL ORDER

President-driven emergency politics has long upended the American political system’s ability to distinguish “genuine from spurious crises” (Tulis Reference Tulis1987, 181). Trump’s singular leadership has rearranged politics during the past decade (Edwards Reference Edwards2021) with a “strongman” power style that infuses partisanship into each extension of executive authority (Howell and Moe Reference Howell and Moe2023). The first year of Trump 47 forged a new chapter in the imbalanced separation-of-powers system. Whereas presidents of both parties frequently have engaged in “departmentalism”—defined as constitutional interpretations and initiatives outside of judicial precedent—“[N]o president since FDR and perhaps ever has engaged in a similar pattern of claiming that he is free to ignore federal laws of which he does not approve [and] openly ignore long-standing Supreme Court precedent on the grounds that he expects the current Court to overrule those precedents” (Schweber Reference Schweber and Schweber2026, 2).

Except for the constitutional focus of UET claims, most day-to-day formal tools of presidential power originate in congressional grants of authority and resources. Members and leaders of Congress may express trepidation and even regret when executive-branch use of delegated powers harms their constituents and their institution’s prerogatives, but they rarely reverse these decisions (Farrier Reference Farrier2010). The US Supreme Court alone will not—and cannot—ultimately reorder the current separation of powers system, even if a majority of Justices rule in one or more major cases against the current president and his administration. These challenges are decades in the making, from partisan differences in constitutional interpretation to the rigid foundations of American institutions that may not fit contemporary needs, spanning electing and removing presidents, as well as checking presidential overreach in Congress (Graber Reference Graber2026).Footnote 53

It also is noteworthy that President Trump’s actions and rhetoric highlight the relevance of other scholarly studies of US and comparative court systems. Ongoing concerns include threats to judicial independence (e.g., personal attacks on judges), potential defiance of judicial orders, politicization of nominations, legislative court-curbing, and sharp partisan differences in public opinion on judicial legitimacy (Davis and Hitt Reference Davis and Hitt2025; Gibson Reference Gibson2024; Hager and Uribe-McGuire Reference Hager and Uribe-McGuire2024; Peabody Reference Peabody2011). In a comparative context, scholars reveal how and why judicial passivity can indicate an elite partisan embrace of unchecked executive power (Democratic Erosion Consortium 2025; Levitsky and Ziblatt Reference Levitsky and Ziblatt2018; Scheppele Reference Scheppele2025). Additional debates among scholars and analysts on Supreme Court holdings in 2025 serve to highlight—but not resolve—the risks and burdens of decreeing the scope of executive power.Footnote 54

The US Supreme Court alone will not—and cannot—ultimately reorder the current separation of powers system, even if a majority of Justices rule in one or more major cases against the current president and his administration.

In 2024, Chief Justice Roberts wrote for the majority that President Trump (and future presidents) are immune from prosecution in their official actions related to US Department of Justice and federal law-enforcement power: “[U]nlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties.”Footnote 55 Yet, other recent cases—from the development of the major-questions doctrine to the overturning of Chevron—demonstrate that the US Supreme Court also is eager to define how the executive branch utilizes Congress’s previous grants of authority, whether or not Congress seeks to reassert itself directly. The US Supreme Court also has an institutional interest in protecting basic legislative authority to shield the judiciary from presidential restructuring, as shown in President Franklin D. Roosevelt’s failed “court-packing” plan in 1937 (Nelson Reference Nelson2023).

As intense focus on these dynamics continues into the second year of Trump 47, it bears repeating that Article II, Section 3, of the US Constitution states that the president “shall take care that the laws be faithfully executed,” which includes implementing what was passed by Congress and signed by predecessors.Footnote 56 Revenue (including from tariffs), trade, immigration, and calling the militia to execute federal law are enumerated in Article I, Section 8, of the US Constitution, and Article II, Section 2, explains the power of Congress to create and structure executive agencies and departments. Furthermore, Congress’s powers to regulate the federal courts in Article III, Section 1, could include reforming the emergency docket of the US Supreme Court as well as clarifying when district courts can issue nationwide injunctions.

Although Congress retains expansive legislative authority across domestic and foreign policy, it lacks consistent institutional ambition and practical political paths to wrest power from the executive branch. The federal judiciary cannot and will not reverse almost a century of imbalanced powers without sustained legislative engagement. Furthermore, as Brown and Epstein (Reference Brown and Epstein2023, 245) demonstrated, “[M]ore than any other modern Court era, the Roberts justices exhibit unusual loyalty to their appointing president in high-stakes cases.” This pattern also can be applied to other federal judges appointed during the last decade in the US Court of Appeals (Schwartz and Schartz Reference Schwartz and Schartz2026). President Trump’s new constitutional hardball tactics will be successful in the absence of consistent and repeated challenges from both of the other branches. The first year of the second Trump administration initiated an uncharted chapter in the longtime reversal of the constitutional script: a president acts first and dares the other branches to overcome significant limitations to stop him (Rakove Reference Rakove2025).

ACKNOWLEDGMENTS

The author thanks George C. Edwards III and the anonymous reviewers for their insightful questions and suggestions.

CONFLICTS OF INTEREST

The author declares that there are no ethical issues or conflicts of interest in this research.

Footnotes

1. See www.federalregister.gov/presidential-documents/proclamations/donald-trump/2025 and www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2025 (as of December 29, 2025); see also Yourish and Smart (Reference Yourish and Smart2025).

2. See Bellinger (Reference Bellinger2025); Just Security (2025); and Saul, Parraga, and Spetalnick (Reference Saul, Parraga and Spetalnick2025). For US military announcements of strikes in Africa, see U.S. Africa Command Public Affairs, December 25, 2025, www.africom.mil/pressrelease/36158/us-africa-command-conducts-strike-against-isis-in-nigeria. For the Office of Legal Counsel (Department of Justice) memo prepared on December 23, 2025, before Maduro’s capture on January 3, 2026, see www.documentcloud.org/documents/26471613-olc-memo-on-venezuela-maduro-capture. For more on the history of justiciability challenges surrounding war-powers litigation, see Farrier (Reference Farrier2019).

3. For a summary graphic of the Justices’ decisions on emergency petitions in the first half of 2025 based on nominating president, see Gabe Fleisher, Wake Up to Politics Substack, July 18, 2025.

4. See EPA v. West Virgina, 597 U.S. 697 (2022); Biden v. Nebraska, 600 U.S. 477 (2023); and the US Supreme Court’s overrule of the “Chevron deference” in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) in White (Reference White2025).

5. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), 635–37 (Jackson, J., concurring). https://constitution.congress.gov/browse/essay/artII-S1-C1-5/ALDE_00013794.

6. Dames and Moore v. Regan, 453 U.S. 654 (1981). https://supreme.justia.com/cases/federal/us/453/654.

7. See www.supremecourt.gov/about/circuitassignments.aspx.

8. See SCOTUSblog Emergency Docket tracker at www.scotusblog.com/case-files/emergency/emergency-docket-2024 and www.scotusblog.com/case-files/emergency/emergency-docket-2025.

9. Different sources have slightly different counts due in part to two decisions that were internally split with majorities granting in part and denying in part. These figures are from a combination of the following sources: Ballotpedia (Reference Ballotpedia2025) and Hurley (Reference Hurley2025). For additional commentary and two Substack posts from Stephen Vladeck, see www.stevevladeck.com/p/189-the-breezy-inequity-of-trump?utm_source=post-email-title&publication_id=1174827&post_id=178235314&utm_campaign=email-post-title&isFreemail=true&r=388uuy&triedRedirect=true (November 6) and www.stevevladeck.com/p/196-justice-kagans-texas-redistricting?utm_source=publication-search (December 8). The final order of the year was a denial in Margolin v. National Association of Immigration Judges, 25A662, December 19, 2025. www.supremecourt.gov/orders/courtorders/121925zr_p8k0.pdf?utm_source=substack&utm_medium=email.

10. See Hurley (Reference Hurley2025), Schwartz and Montague (Reference Schwartz and Montague2025), and American Federation of State, County and Municipal v. Social Security Administration, US Court of Appeals for the Fourth Circuit 25-1411. https://law.justia.com/cases/federal/appellate-courts/ca4/25-1411/25-1411-2025-04-30.html.

11. See Wise (Reference Wise2025) and the decision table with dissent details at https://ballotpedia.org/Supreme_Court_emergency_orders_related_to_the_Trump_administration_2025-2026 (as of December 23, 2025).

12. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

13. Senate Joint Resolution 54, 116th Congress, First Session. www.congress.gov/bill/116th-congress/senate-joint-resolution/54.

14. H.R. 3988–Article One Act, 118th Congress. www.congress.gov/committee-report/118th-congress/house-report/934/1.

15. Roll call votes, 119th Congress, First Session. See www.senate.gov/legislative/LIS/roll_call_votes/vote1191/vote_119_1_00160.htm?utm_source=substack&utm_medium=email and www.senate.gov/legislative/LIS/roll_call_votes/vote1191/vote_119_1_00594.htm?utm_source=substack&utm_medium=email.

16. Executive Order 14157 and Proclamation 10886, January 20, 2025, Federal Register, National Archives. www.federalregister.gov/documents/2025/01/29/2025-02004/designating-cartels-and-other-organizations-as-foreign-terrorist-organizations-and-specially and www.federalregister.gov/documents/2025/01/29/2025-01948/declaring-a-national-emergency-at-the-southern-border-of-the-united-states; Executive Order 14193, February 1, 2025, www.federalregister.gov/documents/2025/02/07/2025-02406/imposing-duties-to-address-the-flow-of-illicit-drugs-across-our-northern-border.

17. Executive Order 14257, April 2, 2025, Federal Register, National Archives. www.federalregister.gov/documents/2025/04/07/2025-06063/regulating-imports-with-a-reciprocal-tariff-to-rectify-trade-practices-that-contribute-to-large-and.

18. V.O.S. Selections v. Trump, No. 25-1812, US Court of Appeals for the Federal Circuit 2025. www.cafc.uscourts.gov/opinions-orders/25-1812.order.6-10-2025_2518126102025.pdf.

19. V.O.S. Selections v. Trump, US Court of Appeals for the Federal Circuit, August 28, 2025. https://storage.courtlistener.com/recap/gov.uscourts.cafc.23105/gov.uscourts.cafc.23105.159.0_1.pdf.

20. Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026), https://www.supremecourt.gov/opinions/25pdf/24-1287_4gcj.pdf and Fact Sheet: President Donald J. Trump Imposes a Temporary Import Duty to Address Fundamental International Payment Problems, February 20, 2026, https://www.whitehouse.gov/fact-sheets/2026/02/fact-sheet-president-donald-j-trump-imposes-a-temporary-import-duty-to-address-fundamental-international-payment-problems/.

21. Proclamation 10888, January 20, 2025, Federal Register, National Archives. www.federalregister.gov/documents/2025/01/29/2025-01951/guaranteeing-the-states-protection-against-invasion.

22. Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua, White House, March 15, 2025, Section 5. www.whitehouse.gov/presidential-actions/2025/03/invocation-of-the-alien-enemies-act-regarding-the-invasion-of-the-united-states-by-tren-de-aragua.

23. Kristi Noem et al. v. Kilmar Armando Abrego Garcia et al. 604 U.S.____ (2025), No. 24A949, April 10, 2025. www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf. See also Raymond and Wolfe (Reference Raymond and Wolfe2025).

24. Truth Social, May 16, 2025. https://truthsocial.com/@realDonaldTrump/posts/114519567610751944.

25. See www.ca5.uscourts.gov/docs/default-source/cm-ecf/25-10534-en-banc-order.pdf?sfvrsn=dab8ce2d_1.

26. See www.law.cornell.edu/uscode/text/8/1254a, 8 U.S. Code §1254a5(A).

27. See www.americanimmigrationcouncil.org/fact-sheet/temporary-protected-status-tps-overview and https://forumtogether.org/article/temporary-protected-status-fact-sheet.

28. US Department of Homeland Security et al. v. D.V.D. et al., 606 U.S.____ (2025), No. 24A1153, July 3, 2025. www.supremecourt.gov/opinions/24pdf/24a1153_2co3.pdf.

29. Kristi Noem et al. v. Pedro Vasquez Perdomo et al., 606 U.S.____ (2025), No. 25A169, September 8, 2025. www.supremecourt.gov/opinions/24pdf/25a169_5h25.pdf?utm_source=substack&utm_medium=email.

30. See www.gov.ca.gov/2025/07/31/nearly-all-national-guard-soldiers-in-los-angeles-are-demobilizing-governor-newsom-demands-those-remaining-be-released.

31. Newsom et al. v. Trump et al., 25-3727, Ninth Circuit Court of Appeals. https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/19/25-3727.pdf.

32. Newsom et al. v. Trump et al., 3:25-cv-04870-CRB. www.uscourts.gov/court-records/access-court-proceedings/remote-public-access-proceedings/cameras-courts/newsom-et-al-v-trump-et-al.

33. State of Oregon and City of Portland v. Donald J. Trump et al., 3:25-cv-01756, October 4, 2025, 15-16, 28-29. www.portland.gov/federal/documents/10-4-2025-state-city-v-trump-temporary-restraining-order-granted/download.

34. Trump et al. v. Illinois et al. 607 U.S.____(2025), No. 25A443, December 23, 2025.www.supremecourt.gov/opinions/25pdf/25a443_ba7d.pdf.

35. Executive Order 14160, January 20, 2025, Federal Register, National Archives. www.federalregister.gov/documents/2025/01/29/2025-02007/protecting-the-meaning-and-value-of-american-citizenship.

36. United States v. Wong Kim Ark, 169 U.S. 649 (1898).

37. Trump v. CASA, Inc. 606 U.S.____(2025), No. 24A884, June 27, 2025. www.supremecourt.gov/opinions/24pdf/24a884_8n59.pdf.

38. Barbara et al. v. Trump, District of New Hampshire, July 10, 2025, noted in www.supremecourt.gov/DocketPDF/25/25-365/378052/20250926163053178_TrumpvBarbaraCertPet.pdf. For more on this case joining the merits docket, see Howe (Reference Howe2025).

39. Senate Judiciary Committee, “Rule by District Judges II: Exploring Legislative Solutions to the Bipartisan Problem of Universal Injunctions,” 119th Congress, First Session, April 2, 2025. www.judiciary.senate.gov/committee-activity/hearings/rule-by-district-judges-ii-exploring-legislative-solutions-to-the-bipartisan-problem-of-universal-injunctions?utm_source=substack&utm_medium=email.

40. See FoxNews (2025) and H.R. 4, 119th Congress, First Session. www.congress.gov/bill/119th-congress/house-bill/4/all-actions.

41. See https://doge.gov/regulations (as of February 10, 2026).

42. Social Security Administration v. American Federation of State, County, and Municipal Employees, 605 U.S.____(2025), No. 24A1063, June 6, 2025. www.supremecourt.gov/opinions/24pdf/24a1063_6j37.pdf.

43. DOGE Service et al. v. Center for Responsibility and Ethics in Washington, 605 U.S.____, No. 24-1246, June 6, 2025. www.supremecourt.gov/orders/courtorders/060625zr_5426.pdf.

44. US Department of State et al. v. AIDS Vaccine Advocacy Coalition et al., 605 U.S.____(2025), No. 25A269, September 25, 2025, 1, 9. www.supremecourt.gov/opinions/24pdf/25a269_bp7c.pdf.

45. Trump v. Wilcox, 605 U.S.____(2025), No. 24A966, May 22, 2025. www.supremecourt.gov/opinions/24pdf/24a966_1b8e.pdf (NLRB and MSPB cases). See also Trump v. Boyle, 605 U.S.____(2025), No. 25A11, July 23, 2025 (Consumer Product Safety Commission case). www.supremecourt.gov/opinions/24pdf/25a11_2cp3.pdf.

46. Trump v. Slaughter, 605 U.S.____(2025), No. 25A264, September 22, 2025. www.supremecourt.gov/opinions/24pdf/25a264_o759.pdf. See also Humphrey’s Executor v. US, 295 U.S. 602 (1935).

47. Trump v. Slaughter. Oral arguments before the US Supreme Court, December 8, 2025. www.supremecourt.gov/oral_arguments/audio/2025/25-332.

48. Trump v. Wilcox, 605 U.S.____(2025), No. 24A966, May 22, 2025. www.supremecourt.gov/opinions/24pdf/24a966_1b8e.pdf.

49. Trump v. Cook, 605 U.S.____(2025), No. 25A312, amici curiae brief, September 25, 2025. www.supremecourt.gov/DocketPDF/25/25A312/376844/20250925093950081_25A312%20-%20Amicus%20Br.%20in%20Opposition%20to%20Application.pdf.

50. Oral arguments related to Trump v. Cook, January 21, 2026. www.supremecourt.gov/oral_arguments/audio/2025/25A312.

51. Executive Order 14242, March 20, 2025, Federal Register, National Archives. www.federalregister.gov/documents/2025/03/25/2025-05213/improving-education-outcomes-by-empowering-parents-states-and-communities.

52. McMahon v. New York, 605 U.S.____(2025), No. 24A1203, July 14, 2025, 1. www.supremecourt.gov/opinions/24pdf/24a1203_new_6j37.pdf.

53. See also Graber’s engagement with Levinson (Reference Levinson2006).

54. See Bonica (Reference Bonica2025). Bonica’s data and analysis were challenged by Goldsmith (Reference Goldsmith2025) and Pildes (Reference Pildes2025).

55. Trump v. United States, 603 U.S.____(2024), No. 23–939, July 1, 2024. www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf. For an overview of critical commentary about the decision, see Lempert (Reference Lempert2024).

56. See https://constitution.congress.gov/browse/essay/artII-S3-3-1/ALDE_00001160.

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