Chemerinsky: SCOTUS takes on multiple challenges to executive orders from Trump administration
Erwin Chemerinsky. (Photo by Jim Block)
The first four months of Donald Trump’s second term as president have been unlike anything in American history with the issuance of a large number of executive orders, many of which are of dubious constitutionality and legality.
As a result, there have been dozens of temporary restraining orders and preliminary injunctions from district courts. A number of these have already made it to the Supreme Court’s emergency docket. One, involving nationwide injunctions to halt the executive order eliminating birthright citizenship, has been fully briefed and argued.
To this point, the Trump administration has had a mixed record in the Supreme Court. Some of the rulings, even though on the “shadow docket,” clearly indicate how the court will rule on the merits. Some indicate major changes in constitutional law, while others leave open more questions than they answer.
Detentions and deportations
The Trump administration has invoked the Alien Enemies Act of 1798 to deport individuals to a maximum-security prison in El Salvador. The act provides that in the event of a “declared war” or “invasion,” the United States can deport males over the age of 14 who are from an enemy nation. Although this law previously had been used only in the War of 1812, World War I and World War II, the Trump administration has invoked it to deport alleged members of a Venezuelan gang.
On April 8, in Trump v. J.G.G., the court ruled, 5-4, that those facing deportation must bring a habeas corpus petition in the federal district where they are being held, but that they must be given notice and a hearing before being deported. Justice Sonia Sotomayor—joined by Justices Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson—dissented and objected to the court getting involved at all and would have allowed the case to continue in the District of Columbia, arguing that the court’s “decision to intervene in this litigation is as inexplicable as it is dangerous.”
On April 19, at about 1 a.m., in A.A.R.P. v. Trump, the Supreme Court issued an order that the “Government is directed not to remove any member of the putative class of detainees from the United States until further order of this court.” It was a 7-2 ruling, with Justice Samuel Alito writing a dissent, joined by Justice Clarence Thomas. On May 16, the court, again 7-2, came to the same conclusion and declared, the “government is enjoined from removing the named plaintiffs or putative class members in this action under the AEA pending order by the Fifth Circuit and disposition of the petition for a writ of certiorari.”
There also is the separate matter of Kilmar Abrego Garcia, a man in Maryland who was removed and taken to a maximum-security prison in El Salvador. A government lawyer admitted that he was deported by mistake. The U.S. District Court for the District of Maryland ordered the government to “facilitate and effectuate his return.”
On April 10, the high court ruled in favor of Abrego Garcia and declared: “The order properly requires the government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the district court’s authority. The district court should clarify its directive, with due regard for the deference owed to the executive branch in the conduct of foreign affairs.”
The matter continues to be litigated and Abrego Garcia remains in prison in El Salvador.
(Disclosure: I was among three professors who authored an amicus brief supporting Abrego Garcia.)
Removal power
In 1935, in Humphrey’s Executor v. United States, the Supreme Court ruled that Congress may limit presidential removal of members of federal agencies to where there is good cause for firing. President Trump has expressly declared that he will not abide by this decision, as he believes that it impermissibly limits the ability of the president to exercise control over the executive branch of government. He fired Gwynne Wilcox, a commissioner on the National Labor Relations Board, and Cathy Harris, a member of the Merit System Protection Board, even though there were federal laws limiting removal in both instances and there was no claim of cause for firing.
On May 22, the Supreme Court, in a 6-3 ruling, lifted a lower court’s preliminary injunction that prevented the removal of these two officials. In Trump v. Wilcox, the six conservative justices, in an unsigned order, explained that its ruling “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.”
Justice Kagan, in dissent, called the court’s action, “nothing short of extraordinary,” and objected that the court was effectively overruling Humphrey’s Executor, and doing so on its shadow docket without briefing or oral argument. Kagan emphasized that Humphrey’s Executor “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.” Kagan complained that the majority’s order “favors the president over our precedent; and it does so unrestrained by the rules of briefing and argument—and the passage of time—needed to discipline our decision-making.”
Spending cuts
The Trump administration has frozen or cut off billions of dollars of federal money. This has been challenged as violating separation of powers for usurping Congress’ control over federal spending and also for violating the Impoundment Control Act. Many district courts have issued temporary restraining orders and preliminary injunctions against the cuts in funding.
Two of these cases have made their way to the Supreme Court and the justices’ rulings seem inconsistent. On March 5, in Department of State v. AIDS Vaccine Advocacy Coalition, the court, 5-4, ruled that the U.S. District Court for the District of Columbia has the authority to order the Trump administration to restore funding for the U.S. Agency for International Development. The short, unsigned order was issued by Chief Justice John Roberts and Justices Sotomayor, Kagan, Barrett and Jackson. Justice Alito wrote a blistering dissent, rejecting the authority of federal courts to order restoring of cutoff funds. His opinion was joined by Justices Thomas, Neil Gorsuch and Brett Kavanaugh.
But about a month later, on April 5, the court came to the opposite conclusion in Department of Education v. California. A federal district court in Massachusetts issued a temporary restraining order against the Department of Education when it cut off $65 million in teacher training grants. Temporary restraining orders are generally not appealable. Nonetheless, the Supreme Court reversed the district court and lifted the temporary restraining order. The majority included Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett. Chief Justice Roberts joined the three liberal justices, Sotomayor, Kagan and Jackson in dissent.
Strikingly, the three-page majority opinion does not dispute that the cutoff of funds was unconstitutional and illegal. As Justice Kagan said in a dissent, “Nowhere in its papers does the government defend the legality of canceling the education grants at issue here.” Instead, the majority suggested that the federal government would be harmed by disbursing the money because if it ultimately prevailed in the litigation, it would be unlikely to recoup the funds. The majority also suggested that the appropriate forum for the case would be an action for breach of contract in the federal Court of Claims.
It is not possible to reconcile these two rulings. Only Justice Barrett was in the majority in both, and she did not write an opinion in either case.
Transgender individuals in the military
President Trump, by executive order, barred transgender individuals from continuing to serve in the military. In his inaugural address, Trump declared, “As of today, it will henceforth be the official policy of the U.S. government that there are only two genders: male and female.” He issued an executive order directing Secretary of Defense Pete Hegseth to put into effect a ban on “individuals with gender dysphoria” from serving in the United States military.
Commander Emily Shilling, who has been a naval aviator for nearly two decades, brought a challenge. The U.S. District Court for the Western District of Washington found that the ban violated equal protection and issued a preliminary injunction to keep it from taking effect. The U.S. Court of Appeals for the Ninth Circuit refused to stay the injunction while the appeal is pending.
On May 6, the Supreme Court in a 6-3 ruling divided along ideological lines, stayed the district court’s order while the federal government’s appeal is pending. Neither the majority nor the dissent wrote opinions.
Although the court did not rule on the merits of the case, it likely reflects the majority’s views on the issue. It also may give an indication of how the court will rule in the pending case of United States v. Skrmetti, which involves the constitutionality of a law that prohibits gender-affirming care for transgender youth.
The pending case about nationwide injunctions and birthright citizenship
In addition to these matters decided on the “shadow docket,” there is one matter where the Supreme Court has had full briefing and oral argument. Three federal district courts issued nationwide injunctions against President Trump’s executive order to end birthright citizenship.
The first sentence of the 14th Amendment declares, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” In 1898, in United States v. Wong Kim Ark, the Supreme Court held that this means everyone born in the United States, regardless of the immigration status of their parents, is a United States citizen. But President Trump’s executive order says that after Feb. 19, only those born to parents who are citizens or green card holders are United States citizens.
The Supreme Court consolidated three cases—Trump v. CASA, Trump v. New Jersey, and Trump v. Washington—and held oral arguments on May 15. The focus of the oral argument was whether a federal district court should be able to issue an injunction to stop an unconstitutional policy for the entire country. The justices seemed sharply divided on that question and seem unlikely to address the constitutionality of the order ending birthright citizenship.
In conclusion
This, of course, is just the beginning of the Supreme Court considering challenges to Trump administration actions. Other matters are pending now and many, many more are sure to arise.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.