CNN
—
President Donald Trump and top allies who have questioned the constitutionality of recent court orders blocking the administration’s agenda touted similar rulings by federal courts as “great news” and “brilliant” when they paused President Joe Biden’s policies.
When a federal judge in Texas halted a Biden administration pause on deportations six days after Trump was inaugurated, presidential aide Stephen Miller took to social media to describe the temporary restraining order as “great news.” When a judge in Louisiana blocked Biden aides from asking social media platforms to remove content, Trump called the decision “amazing.”
“Just last week, in a historic ruling, a brilliant federal judge ordered the Biden administration to cease and desist from their illegal and unconstitutional censorship in collusion with social media,” Trump told an audience in Florida in 2023. (The Supreme Court months later would decide in Biden’s favor.)
Trump has faced a barrage of adverse initial rulings since his inauguration that have paused his efforts to end birthright citizenship, fire leaders at independent government agencies and withhold spending approved by Congress. Those orders are not final but are instead designed to give courts the time needed to review the law.
Still, they can have enormous on-the-ground impacts, and they have allowed Trump’s allies to pour fuel on the notion that his critics are seeking out friendly judges to stall his agenda — just as conservatives often did during Biden’s administration.
The temporary orders, handed down by a single federal judge but often with nationwide ramifications, are exactly the kind of court decisions that the president and his allies are now railing against. Vice President JD Vance, a Yale Law School graduate, carped on social media that “judges aren’t allowed to control the executive’s legitimate power.”
“Judges should be ruling,” Trump said on the “Mark Levin Show” last week. “They shouldn’t be dictating what you’re supposed to be doing.”
The complaints from Miller, who recently blasted a series of temporary court orders against Trump as “tyrannical,” have been particularly notable because he was heavily involved with seeking them against Biden.
Following Trump’s first term, Miller created America First Legal, a group that frequently sued the Biden administration over its Covid-19 policies, immigration orders and its decision to remove Trump appointees from government boards.
To be sure, presidents of both parties, several justices on the Supreme Court and many legal scholars have long raised concerns about temporary orders that block an administration’s policies. The highest-profile cases are usually tied to politically charged issues, which can make it impossible to have rational debates about the ability of courts to issue sweeping injunctions and restraining orders.
A congressional fix, lamented Notre Dame law professor Samuel Bray, would “require putting aside partisan implications in the near term to solve the problem and get the law right in the long term.”
The real puzzle, Bray said, “is why it has taken so long for the Supreme Court to address this.”
“It may be that the onslaught of cases against the second Trump administration will be the occasion where the court is forced to decide,” he said.
Trump’s complaints may also capture the attention of Congress.
“The real question is whether this will incentivize Congress to pursue the very court reforms that were dismissed as Democratic hyperventilating as recently as last year,” said Stephen Vladeck, a Georgetown University Law Center professor and CNN legal analyst.
While the remarks by Trump and Vance set off a flurry of debate about the president’s fidelity to the judicial branch and the principle of separation of powers, they also drew attention to a decades-old — and at times bipartisan — fight over court-ordered nationwide injunctions that reach beyond the parties involved in the litigation.
During the first three years of Biden’s administration, courts issued 14 nationwide injunctions blocking executive orders and policies, according to a Harvard Law Review article last year. During Trump’s first term, courts issued more than four times that many.
Former Attorney General William Barr, who served in the first Trump administration, decried nationwide injunctions, writing in a Wall Street Journal op-ed in 2019 that granting a single judge such power “short-circuits” the usual judicial process. In the final days of the Biden administration, Solicitor General Elizabeth Prelogar urged the Supreme Court to consider limiting the procedure, arguing in an emergency appeal that the orders can lead to “substantial disruption on the execution of the laws.”
The court declined to take Prelogar up on that offer.
But the litigation now swirling around Trump may give the Supreme Court its best opportunity in years to weigh in on that dispute.
“Sometimes an issue has developed to where it’s at a tipping point and something needs to be done,” said Paul Grimm, director of the Bolch Judicial Institute at Duke Law School and a retired district court judge.
“This may be the opportunity that the court says, ‘All right, the time is right for us to take this on and give some guidance,’ because this is a flash point,” Grimm said. “The chance is greater in the next couple of terms than it has been in the past.”
Several justices waded into the thorny issue last spring in a case dealing with Idaho’s strict statewide ban on gender-affirming care for most minors. The court ultimately allowed Idaho to enforce that ban, knocking down a lower court’s sweeping injunction.
Justice Ketanji Brown Jackson, a member of the court’s liberal wing who opposed letting Idaho enforce the law, conceded that “the questions raised by ‘universal injunctions’ are contested and difficult.”
Justice Neil Gorsuch, joined by two of his fellow conservatives, described the debate over temporary court orders as of “great significance” and said because the orders are often considered on an extremely expedited basis they lead to a “fast and furious business.”
“Retiring the universal injunction may not be the answer to everything that ails us,” Gorsuch wrote. “But it will lead federal courts to become a little truer to the historic limits of their office.”
Closely tied to the criticism of sweeping temporary orders is a concern that lawyers aiming to shut down an administration’s policies can seek out a friendly judge — or “judge shop” — and virtually guarantee a favorable, if temporary, outcome.
The federal judiciary has tried to take some steps toward addressing that issue, but those measures have met with resistance and mixed success.
Sebastian Gorka, who worked in Trump’s first White House and who the president has named senior director for counterterrorism this time around, reposted a message on X last weekend describing US District Judge Paul Engelmayer, an Obama appointee, as a “rogue judge.” But he celebrated a nationwide injunction against Biden’s vaccine mandate for federal workers in 2021 in a social media repost, suggesting that a “Federal Judge” had stepped in to block Biden’s “abuse of power.”
Trump himself repeatedly touted or commented on temporary restraining orders and preliminary injunctions that blocked the Biden administration’s policies.
When a federal judge in Louisiana in 2022 issued a preliminary injunction halting the administration from ending the Title 42 program, which allowed the administration to speed the removal of certain migrants, Trump reposted a supporter on his Truth Social platform thanking US District Judge Robert Summerhays for the ruling. Trump appointed Summerhays to the bench during his first term.
White House spokesperson Harrison Fields dismissed the comparison between the Biden-era orders and those issued in the early weeks of the Trump administration.
“It’s simple: Biden abused his executive power to implement policies not within the scope of his presidential powers, while President Trump is appropriately using his executive authority to implement his America First agenda,” Fields told CNN. “These court orders from left-wing judges are a continuation of judicial weaponization that Americans voted against at the ballot box on November 5.”
While Trump has kicked up considerable dust about federal courts, lawyers in the Justice Department have continued to do what administrations have always done with adverse rulings: Appeal.
Following the uproar over Vance’s tweet, the president told reporters in the Oval Office last week, “I always abide by the courts.”
