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Our failing political duopoly

Despite the opposition of George Washington and others, political parties took hold from the early days of our republic. We’ve had a two-party system for most of our history. This system usually worked well, particularly when it consisted of a center-left and a center-right party. However, the current version is failing. Both parties are ever more polarized, ideologically extreme, aloof from most Americans, and distainful of democratic values.  

While the Republican and Democratic parties are increasingly hostile to each other, they have much in common when it comes to tactics. They share a single-minded focus on promoting themselves above all else, including the interests of the American public. They also share a taste for undemocratic methods to maintain a stranglehold on our politics.

The resurgence of gerrymandering

The revival of gerrymandering is a prime example of the parties’ shortcomings. Simply stated, gerrymandering enables politicians choose their voters rather than the other way around. Political parties employ what have become highly sophisticated techniques to manipulate the composition of electoral districts to maximize the impact of their presumed voters and marginalize citizens they expect to oppose them.

In a rare positive political development, this grossly antidemocratic practice seemed to be losing ground in recent years. Some states assigned redistricting decisions to non-partisan independent commissions, as have most Western democracies. While the U.S. Supreme Court shamefully washed its hands of the issue of partisan gerrymandering as a non-justiciable “political question,”^[1]Justice Kagan’s dissent is far more persuasive than the majority opinion. state courts continued to scrutinize and occasionally invalidate partisan gerrymanders.

Unfortunately, gerrymandering has returned with a vengeance. President Trump pushed red states to gerrymander aggressively in advance of the 2026 midterm elections—a stark departure from the normal practice of redrawing congressional districts only once a decade following the decennial census. Texas led the charge by producing a gerrymandered map that could flip five House seats to Republicans. California responded by overriding its independent redistricting commission in the hope of gerrymandering five additional Democratic seats. Virginia recently proposed bypassing its independent commission to gerrymander its House districts from 6-5 to 10-1 in favor of Democrats.

More states are poised to join the gerrymandering frenzy on one side or the other. It’s estimated that up to 15 states could potentially gerrymander in ways that would in the aggregate shift 16 congressional seats to Republicans and 14 to Democrats. For this net gain of two Republican seats, over a million American citizens across those 30 congressional districts could be effectively disenfranchised.

While some see gerrymandering as nothing more than politics as usual, it’s much worse than that. It’s a cynical assault on one of the most fundamental constitutional rights of citizens—the right to vote. It discounts the votes of citizens based on their disfavored political views. Gerrymandering as a form of race discrimination has long been recognized as unconstitutional. The harm is the same when votes are diluted based on voters’ political beliefs. Indeed, it’s often hard to tell whether gerrymanderers are motivated by racial or political animus. It shouldn’t matter; both are invidious and unworthy of our democracy.

How the gerrymander wars play out remains to be seen. A few courageous state legislators are resisting entreaties to gerrymander and there may be pushback from state courts. Sadly, however, what does seem clear is that both parties will gerrymander whenever they can get away with it. In a recent poll, majorities of both Republicans and Democrats expressed support for gerrymandering not just as a defense against the other party but also as an affirmative tactic to gain political advantage.

Other means of stifling electoral competition

Gerrymandering is hardly the only means by which the two major parties undermine democratic principles. Both seek to preserve their stranglehold by impeding independent voters and discouraging third parties, often with the help of state laws. Closed primaries allow only registered party members to choose candidates for the general election. At least one party conducts closed primaries in 23 states. This practice excludes millions of independent voters from what has become the decisive stage in most federal elections. (See below)

Winner-take-all election rules, where the candidate with the most votes wins even with only a plurality of votes, apply in all congressional elections and in presidential elections in all but two states. They strongly encourage voters to choose one of the major party candidates rather than “waste” their vote on a third-party candidate with little chance of winning.

Candidates outside the two major parties also face substantial legal and financial hurdles to getting their names on the ballot, fundraising disadvantages versus the major parties, and challenges to gaining equal media coverage including participation in debates.

The parties sometimes suppress competition from within as well as from the outside. Democrats did both during the 2024 presidential election, fighting against a third-party campaign by No Labels and blunting challenges to Joe Biden from fellow Democrats. They eventually crowned Kamala Harris as their nominee with no formal competition at all.   

The consequences for our democracy and governance

Gerrymandering and other antidemocratic practices by the two parties along with demographic residence patterns render most congressional seats noncompetitive. The Cook Political Report rates only 18 of 435 House seats as tossups and only another 42 as potentially competitive in the 2026 midterm elections. Of the 35 Senate seats at stake in 2026, only four are rated tossups and only another six as potentially competitive.

Noncompetitive elections harm our democracy by breeding cynicism and apathy. Minority voters in a gerrymandered non-competitive district may lose their incentive to vote and simply drop out. Even voters who align with the district’s majority party may view their votes as immaterial and refrain from voting.  

They also exacerbate many problems plaguing the workings of our government. The only real competition in one-sided districts takes place in the primaries. Primary elections are dominated by each party’s base voters, who are more partisan and ideologically extreme than general election voters. Candidates win primaries by appealing to those base voters and they remain in office by continuing to play to the base to avoid being “primaried” in the future.

In reality, these members of Congress represent their base voters rather than their constituencies as a whole and operate as loyal members of Team Red or Team Blue rather than open-minded legislators focused on the public interest. They have no incentive to work across the aisle or to compromise their team’s ideological tenets and every reason not to.

The once-popular notion that effective politics is the art of  compromise has no place in this environment. Instead, gridlock generally prevails in times of divided government and highly partisan steamrolling is the rule when (as now) a single party controls the presidency and both chambers of Congress. Either tends to foster poor governance.

The two parties are detached from the people

Our political duopoly might be more tolerable if the two parties between them reflected the interests and perspectives of most Americans. However, this is far from true today. Unlike either party, most Americans hold moderate, pragmatic views; in fact, there is broad public consensus on many issues that polarize the parties. Most Americans also much prefer collaboration, compromise, and problem-solving to ideological posturing.^[2]See, e.g., here, here, and here.

It’s thus no wonder that both parties are estranged from much of the public and held in low esteem. According to Gallup, a record high 45 percent of Americans identify as independents—almost twice the percentage that aligns with either party (27% each). They also  strongly disapprove of both the Republican (58-40% negative) and  Democratic (61-37% negative) parties. Even presidential candidates from both parties have grown more unpopular over the years, increasingly viewed as offering voters a poor choice.

The parties won’t fix themselves 

Either party could achieve great success by moving closer to the values of most Americans. Yet such change from within is unlikely. The Republican party is little more than the cult of Trump with no agenda beyond subservience to his every whim. It’s hard to know what will become of it once he leaves office. The Democratic party is searching for an identity but seems unable to shake the grip of its ideologically extreme advocacy groups and performative, out of touch liberal elites.^[3]See here and here.

The best, perhaps only, means of change is for ordinary Americans to shake off their (understandable) frustration and engage more actively in politics, particularly at the primary election stage, either to force the two parties closer to the center or to support independent candidates or third parties who better represent their values.

 

 

 

 

 

 

 

Constructive debate in a healthy democracy requires widespread agreement on at least a core set of values as well as mutual acceptance of objective facts. Both are in short supply in America today. One would struggle to identify a single important fundamental value, much less a set of values, that is widely shared among our current hyper-partisan, hyper-polarized political factions.

It’s often just as hard to find general acceptance of objective facts and obvious conclusions flowing from them. Daniel Patrick Moynihan’s once-famous admonition that everyone is entitled to their own opinions but not their own facts seems like a relic from a bygone era.

Consider the recent Quinnipiac poll of registered voters on the tragic killing of Alex Pretti by Border Patrol agents in Minneapolis. Most respondents of all political persuasions had seen videos of the incident.^[1]Specifically, 74% of Republicans, 82% of Democrats, and 79% of independents. However, their responses differed drastically on whether the shooting was justified and whether the Trump administration’s account of the incident was honest.

On the question of whether the shooting was justified, a majority of Republicans said yes (55 to 20% with 25% undecided). An overwhelming majority of Democrats said no (94 to 2%) as did a most independents (66 to 14%). There was a similar disparity on the question of whether the Trump administration’s account was honest. Most Republicans said yes (60 to 19%) while almost all Democrats (93 to 2%) and most independents (65 to 20%) said no.^[2]One area of agreement was that the Pretti shooting should be subject to an independent investigation, but there were major disparities here too: Republicans 56 to 36% yes, Democrats 96 to 3%, and … Continue reading

Some suggest that the Pretti shooting and other politically controversial incidents resemble “political Rorschach tests.” But Rorschach ink blots are designed to be ambiguous with no right or wrong answers. There is little if any ambiguity in the available evidence regarding the Pretti shooting, particularly the videos.

One can certainly reject the claim by some that Pretti’s shooting constituted an  intentional “execution” or “murder.” Perhaps one could even argue that the agents who shot Pretti acted lawfully based on their perceptions since legal standards heavily favor law enforcement officers in such situations. But how could anyone who viewed the videos genuinely believe that the shooting was in fact justified or that the administration’s account was honest? Even key administration officials have backtracked from their initial claims.

Clearly, this is a case of willful blindness or knowing disregard of the facts by Republican respondents. There are countless other examples, some equally stark, where one political faction or the other ignores or denies the obvious. Donald Trump has no equal at this, but Democrats also engage in it. (See, for example, many tenets of wokeism.)

Constructive engagement and rational, good faith debate between political factions are almost wholly lacking now, leaving us with only hostility between the parties and polarized, dysfunctional government. If our democracy is to somehow right itself  both sides must accept that objective facts exist and matter in our public discourse, and start acting accordingly.         

The ongoing nightmare in Minnesota involving Department of Homeland Security (DHS) agents versus Minnesota citizens now resembles Groundhog Day. Saturday’s tragic killing of Alex Pretti is eerily similar to the equally tragic killing of Renee Good just a few weeks ago. Pretti acted incredibly recklessly by interjecting himself into DHS operations while carrying a concealed firearm (albeit apparently legally). However, the agents’ response was highly problematic based on videos taken at the scene.

As in the Good case, federal officials immediately sought to justify Pretti’s killing, making claims for which they offered no support and which were clearly inconsistent with the videos in key respects. DHS Secretary Noem and Border Patrol Commander Bovino branded Pretti a “domestic terrorist” who “attacked” federal agents and intended to “do maximum damage and massacre” them. Deputy White House Chief of Staff Stephen Miller called Pretti a “would-be assassin” who “tried to murder federal agents.”

Federal officials claimed that Pretti “brandished” his gun at the agents, although videos show that he approached them with only a cell phone in hand. The videos don’t show Pretti ever reaching for his gun. Rather, they indicate that an agent confiscated Pretti’s gun moments before he was shot as many as ten times. As in the Good case, the feds initially barred state and local officials from participating in any investigation of Pretti’s shooting.

The Good and Pretti killings evoked polarized political reactions and overheated rhetoric from both sides and do present some gray areas. However, no reasonable, fair-minded person could contest the following:

Federal officials are responsible and accountable for the conduct of their agents but showed zero interest in assuming it here; instead, they took the opposite course. In both cases, they aggressively pushed narratives that are premature at best, lack any apparent evidentiary support, and at worst (and more likely) are blatantly false given available evidence.

They seem determined to stifle efforts to pursue the truth. They stonewalled state and local law enforcement officials. They declined even to investigate the conduct of the agent who killed Good, instead focusing their investigation on her.

Their statements in both cases exonerating the shooters and condemning the victims are highly prejudicial to any objective, credible investigation. No one can have confidence in an investigation when executive branch leaders have already announced the results.

While law enforcement officers deserve considerable leeway in the dangerous and rapidly evolving situations they face, they are not entitled to a total lack of accountability. The administration’s knee-jerk rejection of any possible wrongdoing by DHS agents is not only unwarranted but sends a terrible message both to the agents and the public.

These two cases also highlight broader issues that need urgent attention. By outward appearances, ICE and Border Patrol agents operate in extremely aggressive and confrontational ways. Even if ICE agents could ultimately claim justification for killing Good, they violated DHS protocols throughout their interactions with her. From start to finish, they escalated the situation, increasing the danger both to her and themselves. (See here and here.) Pretti’s intervention with Border Patrol agents came only after one of them threw a woman to the ground. There is no indication that he attempted to do anything but assist her. Even Stephen Miller suggested that the agents who shot him were not following their protocols.

There are many other instances in many places of DHS agents engaging in seemingly gratuitously aggressive, confrontational conduct that invites the left’s frequent portrayal of them as Nazi-like thugs. Clearly, ICE and the Border Patrol need intensive scrutiny. Among the questions to be asked:

Are agents out of control and lacking adequate training and supervision? They undoubtedly face difficult situations and provocations, perhaps even organized efforts to provoke and impede them as many on the right allege. However, professional law enforcement officers are trained to respond to such encounters in measured ways designed to de-escalate them.

Alternatively, are the agents simply doing what the Trump administration expects of them? The administration’s rhetoric coming from Trump on down, including their reflexive defense of the agents and aversion to seeking accountability, certainly suggests that Trump et al. encourage and embrace their hyper-aggressive tactics.

What law enforcement objective justifies the massive surge of DHS agents to Minnesota? It has a relatively low proportion of illegal immigrants compared to other states. The number of DHS agents there now far exceeds the total Minneapolis police force.

Is DHS really focusing on apprehending the “worst of the worst” illegal immigrants as DHS claims? While credible data is elusive, it appears that only about five percent of detainees have criminal convictions and only about half face criminal charges, which may or may not be serious. Many believe the current approach is just a massive, indiscriminate, quota-driven show of force that generates much publicity and chaos but few results that make the country safer.

If there is a silver lining here, the tragic deaths of Good and Pretti may provide an inflection point. Even Trump has backed off slightly from defending these outrages, and he placed “Border Czar” Tom Homan in charge of Minnesota operations.  Homan has his shortcomings, but may still be the closest the Trump administration has to a voice of reason on immigration enforcement.

But much more is needed. The DHS appropriations bill is part of a “minibus” package of bills pending before the Senate as the current continuing resolution nears expiration at the end of January. Democrats vow to oppose funding DHS unless it undergoes reforms. Will this finally be the moment that Republicans in Congress find the courage and integrity to fulfill their constitutional responsibilities by joining in crafting fixes to the DHS mess? We’ll see.

The death of Renee Nicole Good in Minnesota is tragic in many ways and cries out for a comprehensive, objective investigation both as to its specifics and more broadly what it says about the Trump administration’s super aggressive immigration enforcement tactics. Sadly, the politicization of this incident makes it extremely doubtful that these issues will receive the full and fair scrutiny they deserve.

Politicians and ideologues on both sides are guilty of grandstanding and overheated rhetoric over the incident that creates more smoke than light. However, the primary blame falls squarely on federal officials who are responsible for finding the truth here. President Trump and his underlings, most notably Homeland Security Secretary Noem and Vice President Vance, have rushed to judgment with a narrative that lacks support in the evidence that has emerged so far and in fact seems blatantly false in key respects.

It appears that Good was using her SUV as part of a protest and effort to interfere with ICE operations by partially blocking a Minneapolis street. Videos recorded in the moments before her death show an ICE agent approaching her vehicle aggressively and trying to force open the door. Good initially backed her car up and then drove it forward and away from the agent. The car may (or may not) have made contact with another ICE agent standing in front of it who then moved away. The agent was not seriously injured if he was hit. This agent fired three shots, one through the windshield and apparently two through the driver side, killing Good.

From this, Noem proclaimed that Good committed “an act of domestic terrorism” by “weaponizing” her vehicle in an attempt to ram and kill the agent, who was therefore entirely justified in killing her in self-defense. Trump embraced and embellished this narrative in a Truth Social post, asserting that Good “violently, willfully, and viciously ran over the ICE Officer, who seems to have shot her in self defense.” He added, absurdly, that “it is hard to believe he is alive.”

No evidence has come to light that would support this narrative, which is now being dutifully echoed by Vance and other administration officials.^[1]One official, “Border Czar” Tom Homan, was at first a lone voice of reason urging that the investigation be allowed to play out before reaching conclusions. However, he later seemed to back off … Continue reading A more plausible take from the available videos is that Good was trying to escape the ICE agents when she was shot.

Good’s conduct was hardly exemplary. She was wrong to attempt to impede ICE operations as opposed to just protesting them and reckless to use her 4,000-pound SUV in the process. She should not have resisted the ICE agents, although her reaction under the circumstances may be understandable.^[2]One aspect that has been largely overlooked is the very aggressive action of the ICE agent who rushed to Good’s vehicle and reached inside it. This  certainly could have instilled fear and panic … Continue reading Also, one video shows Good’s wife taunting the agent who shot Good and apparently urging Good to drive away.

Obviously, much investigative work remains to be done. On the key issue of whether the ICE agent reasonably believed Good posed a threat justifying the use of lethal force, law enforcement officers are understandably accorded considerable deference. Regardless of his perceptions and their reasonableness, however, nothing revealed so far remotely suggests that Good was a “domestic terrorist” or that she in fact tried to attack the agent.

In sum, the narrative put forth by Trump and his supporters is premature at best regarding the ICE agent’s conduct and wholly baseless if not blatantly false regarding Good. It’s also highly prejudicial to the investigation. How can anyone have confidence in an FBI investigation when the president and other executive branch leaders have already announced the results? The fact that the FBI changed course and excluded Minnesota officials from participating further undermines the credibility of its investigation.

The administration’s knee-jerk rejection of any possible wrongdoing by ICE and its agents is not only unwarranted but sends a terrible message to both ICE and the public. Certainly, law enforcement officers deserve support and must be granted considerable leeway in the many dangerous and rapidly unfolding situations they regularly face. However, they are not entitled to a total lack of accountability. Mistakes are made and rogue actions do occur.

Amid all the issues and ambiguities over this incident, one crystal clear thing that stands out is the lack of integrity on the part of Trump and his supporters. They are singularly focused on absolving themselves of blame at all cost and hostile to seeking the truth. Indeed, they are doing all they can to demonize and suppress those who would dare to question their dubious narrative. Their reactions should be condemned by anyone with a conscience and a sincere desire to see justice done in this case.  

The longest government shutdown in history is finally over, but not before exacting billions of dollars in economic losses and imposing severe hardships on millions of Americans. It provided further evidence, if any was needed, of how dysfunctional our federal government and national politics have become.

And for what?  As is typical of shutdowns, it was an exercise in political theater that produced virtually nothing of value. Democrats abandoned their asserted steadfast demand for an extension of emergency Affordable Care Act (ACA) subsidies. They settled for a promised Senate vote on the extension, something they probably could have secured just by threatening a shutdown.

While Democrats got additional legislative language affirming federal employee rights during a shutdown, those rights were already protected. (See below) The only significant positive outcome was rejection of the House’s ludicrous effort to undermine the Government Accountability Office (GAO), Congress’s own “watchdog” agency. But even that achievement will be fleeting if Congress lets President Trump appoint a partisan loyalist as the next Comptroller General.

The lack of substantive outcomes is unsurprising since the shutdown was never about substance. Rather, it was a cynical political game between our two warring parties, each all too willing to inflict heavy damage on the American public in pursuit of partisan gain.

When a shutdown was threatened earlier this year, Senate Minority Leader Chuck Schumer sensibly headed it off by supporting a stopgap funding measure. In response, Democrats to his left mercilessly excoriated him. This time around, Schumer yielded to the intense pressure to do something—anything—to show that Democrats still had a pulse. A shutdown was the only option available.

The ostensible goal of the shutdown—extending ACA subsidies–was chosen for its political appeal rather than its substantive merit and was never realistically achievable. The subsidies were enacted as a temporary emergency measure during COVID. Simply extending them without addressing much needed health care reforms is poor policy and certainly not a compelling justification for shuting down the government. But it polls well. The real impetus for the shutdown was extreme (and understandable) Democratic frustration over their powerlessness and irrelevance in the face of Trump’s many outrages.^[1]They could have been more transparent, and possibly more effective, by building their goals around this. For example: clarify that injured parties may sue to stop illegal impoundments and that … Continue reading The shutdown offered an outlet for this, and it did put Democrats back in the spotlight for a while.

The political nature of the shutdown is illustrated by the fact that none of the eight Democratic senators who voted to end it is up for reelection in 2026. The split between the two ideologically comparable Virginia senators is noteworthy in this regard. Tim Kaine, who has five years remaining on his term, voted to end the shutdown; Mark Warner, whose term expires in 2026, voted to prolong it. 

Shutdown tactics were just as politically driven and cynical on the Republican side. The Trump administration initially embraced the shutdown as an opportunity to further abuse federal employees and gut “Democrat programs.” It threatened to deny furloughed employees back pay to which they clearly were entitled. It tried to fire employees through reductions in force (RIFs) until a court declared the RIFs illegal and enjoined them. It engaged in wholesale and likely illegal manipulation of what funding sources remained during the shutdown to continue payments for favored purposes while denying others.

As usual, GOP congressional leaders fell in line as Trump flouted the law and trashed congressional spending prerogatives left and right.  Speaker Mike Johnson, who seems to view his primarily role as being a Trump operative, kept the House in recess during the entire shutdown and shamefully refused to swear in a newly elected Democratic member. He apparently did this in part to avoid a House vote to release additional Epstein files that could embarrass Trump. (Senate GOP leaders at least rejected Trump’s demand to abolish the filibuster.)

Still further demonstrating that the shutdown was all about politics, postmortems across the ideological spectrum focus almost exclusively on which party “won” or “lost” politically. While this can be (and no doubt will be) debated ad nauseum, the more important but overlooked point is that the American people are the surest losers. The costs and burdens of the shutdown fell on them, and they gained nothing from the political gamesmanship.

This is the standard, predictable outcome of government shutdowns. They invariably turn out to be political side shows and fool’s errands that fail to achieve their stated goals and produce only public harm.  As former Comptroller General Dave Walker succinctly puts it: “Shutdowns are stupid!” The public would greatly benefit if both parties abstained from them. Alas, there’s little chance of that in the current political environment.

Both our increasingly extreme and polarized parties, along with their cheerleaders, are thoroughly addicted to political posturing and consumed by their mindset of Team Red versus Team Blue. They focus almost exclusively on coming out of a shutdown with a political “win” while showing little regard for the damage they inflict on the country and its citizens in the process. It’s no wonder that both parties are so estranged from the public and held in such low esteem. The irony is that if either of them—or a new party–moved closer to the moderate and heterodox views most Americans espouse and their strong preference for pragmatic, bipartisan problem solvers, it could achieve great success.

Fortunately, this shutdown was eventually broken by eight senators who were less vulnerable to immediate political retribution and thus freer to make an impartial choice. (Evidently, some of their more fearful colleagues privately supported them.) Hopefully, they can help avoid a repeat of this fiasco when the stopgap measure expires at the end of January.

 

 

 

 

The Office of Management and Budget (OMB) claimed in an October 3 legal memo that federal employees furloughed in the current government shutdown have no right to backpay once the shutdown ends. President Trump even hinted that he could pick and choose which employees to reimburse. It’s hard to tell whether this is a serious argument or just part of the political gamesmanship surrounding the shutdown. (The OMB memo is labeled a “draft.”) In any event, it is clearly wrong on the law.

The Antideficiency Act (31 U.S.C. 1341) generally prohibits agencies from incurring obligations to pay money in advance of appropriations. Before 2019, this Act imposed different legal consequences for federal employees furloughed during a government shutdown and those employees considered essential and required to continue to work (so-called “excepted employees”). The government was considered legally obligated to provide backpay for excepted employees since they continued working. Furloughed employees had no legal entitlement to backpay since they didn’t work during the shutdown.

However, the distinction between excepted and furloughed employees for purposes of backpay was more theoretical than practical. Once shutdowns ended, Congress routinely enacted specific language providing backpay for furloughed employees as well. Following the lengthy 2019 government shutdown, Congress amended the Antideficiency Act to eliminate the distinction once and for all. The amendment, known as the Government Employee Fair Treatment Act, provides:

“Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations, and each excepted employee who is required to perform work during a covered lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse.”  

The obvious purpose of this amendment and the clear effect of its language is to place furloughed and excepted employees on the same footing for purposes of backpay following a shutdown. Until very recently OMB itself recognized this in guidance that stated:

“The Government Employee Fair Treatment Act of 2019 (Public Law 116-1) provides that upon enactment of appropriations to end a lapse, both furloughed and excepted employees will be paid retroactively as soon as possible after the lapse ends, regardless of scheduled pay dates.”

OMB deleted this sentence from its guidance on October 3, the same date as its legal memo.

The OMB memo contradicts the clear purpose and plain meaning of the 2019 amendment. It contends that the amendment “did nothing to create an obligation on the part of the government to pay furloughed employees.” But that’s exactly what it does, providing that furloughed employees “shall be paid” for lost salary during an appropriation lapse. The memo complains that viewing the amendment this way “would effectively collapse the distinction between excepted and furloughed employees.” But again, that is the clear and essential purpose of the amendment with regard to backpay.

The memo argues that the concluding phrase “subject to the enactment of appropriations Acts ending the lapse” means that specific additional appropriation language is still needed to provide backpay to furloughed employees. Nothing in the language suggests this; indeed, the language requiring that backpay be paid “at the earliest date possible after the lapse in appropriations ends” contradicts it. Furthermore, if the language meant what OMB says, the whole amendment would serve no purpose at all. Even more absurdly, its effect would be to create a new impediment to paying excepted employees backpay since the language applies to them too.

Contrary to OMB’s reading, this is boilerplate language similar to the often-used phrase making payment of government obligations “subject to the availability of appropriations.” It simply means that an agency must have funds generally available for employee salaries to pay the backpay once the shutdown ends. It would be significant only in an unusual situation where the continuing resolution or other law ending the shutdown did not restore funding for a particular agency and thereby prevented it from paying backpay to any employees—furloughed or excepted.

In sum, the memo is entirely without merit. It’s bad enough that federal employees (along with the public) must suffer because political decisionmakers fail in their constitutional duties. It’s even worse when employees are used as pawns in these political games and are subjected to frivolous threats like this.

 

As frequently noted, the Supreme Court has been far more reluctant than lower courts to rule against Trump. There are plausible explanations for this disparity other than the assertion by many on the left that pro-Trump bias is at work. However, yesterday’s 6-3 emergency docket ruling in Department of State v. AIDS Vaccine Advocacy Coalition (aka Global Health Council v. Trump) is a major cause for concern. The conservative majority’s siding with the Trump administration here not only seems clearly wrong on the merits but rewards a series of outrageous, bad faith tactics by the administration.

While the case deals with the arcane subject of impoundment of appropriated funds, its subtext involves important issues of separation of powers. The background is described in detail here and here. To summarize:

In early 2025, the Trump administration impounded (i.e., decided not to spend) billions of dollars in foreign aid funds appropriated by Congress because it disagreed with Congress’s policy choices in enacting those appropriations. The president has no constitutional authority and only limited, temporary statutory authority (see below) to refuse to carry out an appropriation act based on policy differences with Congress.

The Impoundment Control Act (ICA) provides that if the president objects to spending appropriations for policy reasons, he may send a message to Congress proposing the “rescission” (i.e., repeal) of the funds. The ICA allows the funds to be withheld for 45 days while Congress considers a rescission bill. However, the funds must be made available for use if Congress fails to pass such a bill within the 45 days.

The administration failed to submit a rescission proposal to Congress early in 2025 when it decided not to spend the foreign aid funds. This was a blatant violation of the ICA.

Prospective recipients of the foreign aid funds sued the administration over the impoundment. In March 2025, a federal district court found the impoundment illegal based on the ICA violation and other grounds and ordered the funds to be made available. The court’s order was in effect for about four months but the administration apparently did little if anything to comply with it.

At the end of August, the administration finally submitted a rescission message to Congress–less than 45 days before the appropriations expired (i.e., ceased to be available for use) on September 30. This so-called called “pocket rescission” also violated the ICA since it enabled the president to unilaterally (and unconstitutionally) repeal the appropriations without congressional action. Thus, the administration violated the ICA once in early 2025 in order to position itself to violate the Act again in August, with the second violation effectively eliminating the funds.

In the litigation, the administration offered little defense of its actions on the merits. Rather, it perversely argued that the ICA barred the suit. Specifically, it maintained that an ICA provision authorizing the Comptroller General to sue to remedy violations of the Act foreclosed challenges to impoundments by any other party. As Justice Kagan’s dissent points out, this argument is contradicted by the plain language and entire background of the ICA.

The administration’s argument is not only wrong but also thoroughly disingenuous. The Trump administration is doing everything it can to hamstring the Comptroller General in carrying out his functions under the ICA and would undoubtedly contest his constitutional ability as a legislative branch official to sue. In short, the administration’s real strategy is to prevent suits by anyone to challenge its impoundments.

The administration also made much of the difficulties it would face in applying the funds at the eleventh hour. Of course, any such problems were entirely of its own making due to its protracted, unlawful delays.  

It’s not surprising that the Trump administration would engage in such deceitful conduct and legal arguments. What’s shocking is that the six conservative justices sided with the Trump administration and condoned its misconduct. The majority offered no explanation beyond bare assertions that the administration had made “sufficient” showings to justify emergency relief; nor did the majority offer any rebuttal to Justice Kagan’s cogent dissent.

The majority concluded its brief order by noting that it reflected only their “preliminary view” and “should not be read as a final determination on the merits.” But the apparent effect of the Court’s action is to allow the appropriations at issue to expire unused, thereby mooting the case.

Given the Supreme Court’s typical (and unfortunate) lack of explanation for emergency docket rulings, there’s no to way to discern the majority justices’ thinking. However, it’s hard to see any sound basis for their action. Perhaps it’s an example of the majority’s extreme ideological bias toward the executive branch that was on display in its deeply flawed presidential immunity decision. Perhaps, the majority somehow accepted “the asserted harms to the Executive’s conduct of foreign affairs” as outweighing all other considerations. Hopefully, it’s not a sign of bias toward or fear of Trump. In any event, the outcome hardly instills confidence that SCOTUS is prepared to stem Trump’s lawlessness.

   

         

The Trump administration’s all too frequent duplicity pervades its approach to impounding, i.e., refusing to spend, appropriations enacted for purposes it opposes. It flouts the president’s constitutional obligation to take care that appropriation acts are “faithfully executed” and largely ignores the Impoundment Control Act of 1974 (ICA), which the administration condemns as unconstitutional.    

Ironically, the administration is now cherry picking and embracing isolated provisions of the supposedly unconstitutional ICA and perversely using them to undermine the Act. It fended off a challenge by potential grantees to its massive impoundment of foreign assistance funds in Global Health Council v. Trump by persuading the D.C. Circuit that only the Government Accountability Office (GAO) could sue to enforce the ICA.^[1]See here for background. At the same time, it’s doing all it can to impede GAO’s ability to carry out its responsibilities under the Act.

The administration’s most recent ploy to pervert the ICA is so-called “pocket rescission.”

The ICA generally prohibits the executive branch from refusing to spend appropriations based on disagreement with the congressional policy choices they embody. It provides only one limited way to do this. If the president believes that appropriated funds should not be used based on “fiscal policy or other reasons,” the president can submit a special message to Congress proposing that they be “rescinded,” i.e., canceled.

Rescission requires a full-blown act of Congress since it repeals part of another law (the appropriation act). Therefore, the ICA permits the funds involved to be withheld from use for 45 days in order to give Congress time to consider rescission legislation. If Congress does not complete action on a rescission bill within that 45-day window, the ICA requires that the withholding end and the funds be made available for use.

On August 29, the Trump administration submitted a special message to Congress under the ICA proposing to rescind $4.9 billion in foreign assistance appropriations that funded what it described as “woke, weaponized, and wasteful spending.” However, these appropriations will expire by their terms, i.e., cease to be available for use, on September 30–well before the end of the ICA’s 45-day withholding period. This gambit, called a “pocket rescission,” in effect enables the administration to cancel the funds unilaterally without congressional action.

Pocket rescissions are the brainchild of Office of Management and Budget Director Russell Vought. The legal argument in support of them is that the ICA does not literally impose a time limit on when rescission proposals can be submitted and that presidents have in the past submitted such proposals late in a fiscal year, allowing funds to expire during the 45-day period. But most sources, including GAO, consider pocket rescissions to be illegal. Moreover, the limited and ambiguous history of this practice does not demonstrate congressional acceptance of it.

The opponents of pocket rescission have the stronger argument by far. Pocket rescissions are obviously incompatible with the fundamental purpose and design of the ICA by effectively transferring to the president Congress’s authority to amend an appropriation act by rescission. If the ICA were interpreted to grant the president such authority it probably would be held unconstitutional for the same reasons that the Supreme Court overturned a statute granting the president line item veto authority.

Pocket rescissions also contradict the specific language of the ICA since they nullify the Act’s key command that funds proposed for rescission must be made available if Congress fails to complete action on a rescission bill within the prescribed 45 days. Only Congress can cancel a duly enacted appropriation. The 45-day window for withholding funds is not an independent, free-standing grant of authority to cancel spending; it merely preserves the status quo to give Congress time to act.

Finally, it’s important to consider the administration’s extraordinary bad faith in proposing this particular pocket rescission. The only conceivable justification for a pocket rescission would be if the circumstances prompting it did not arise until shortly before the funds were scheduled to expire. That is emphatically not the case here.

As early as January 2025 and certainly no later than March, it was abundantly clear that the administration had no intention of spending the foreign assistance appropriations. Therefore, the ICA required submission of a rescission proposal to Congress at that time. Indeed, a federal district court held in March that the administration’s failure to do so violated the ICA and ordered it to make the appropriations available for obligation.

The district court’s order remained in effect until mid-August when it was vacated by the D.C. Circuit.^[2]The appellate court’s decision did not reach the issue of whether there was an ICA violation. It’s unclear what the administration did to comply with the district court’s order to make the funds available during the over four months the order was in effect. Apparently little or nothing since the $4.9 billion remained unused throughout.

In short, the administration deliberately and unlawfully stalled its rescission submission until late August in order to bypass Congress via an eleventh hour pocket rescission. Simply stated, it committed one violation of the ICA in order to position itself to commit another.      

The administration’s actions here are a blatant abuse of the ICA. Appallingly, it appears they will get away with it. In an emergency docket ruling, the Supreme Court apparently bought the argument that by virtue of the ICA only GAO can challenge impoundments. And it appears too late even for GAO to act before the funds expire given the ICA’s requirement that GAO provide 25 days advance notice to Congress before suing.

One can only hope that outrages like this will eventually prompt this quiescent Congress to wake up and reassert itself as a functioning, coequal branch of government.

 

Spearheaded by Office of Management and Budget (OMB) Director Russell Vought, the Trump administration is engaged in a broad assault on Congress’s constitutional power of the purse. It claims sweeping authority to “impound,” i.e., refuse to spend, appropriations enacted by Congress for purposes the administration opposes.  

This campaign to wrest control of spending from Congress features the bad faith tactics that are all too characteristic of the Trump administration and its Justice Department abettors. They have seized upon a law they previously condemned as unconstitutional–the Impoundment Control Act–and turned it on its head by seeking to use it not to control impoundments but to prevent judicial and congressional review of the administration’s impoundment practices.

These perverse administration tactics are on full display in the administration’s massive impoundment of foreign assistance appropriations. This post explores its attempt to stymie judicial review of impoundments; a subsequent post will address its effort to use “pocket rescissions” to circumvent Congress.

Impoundment and the ICA

Appropriation acts are federal laws; the president has no more authority to disregard or undercut them than any other law. On the contrary, the Constitution (Art. II, sec. 3) requires the president to see to it that appropriation acts, like other laws, are “faithfully executed.”

Appropriations are typically written broadly and grant the executive branch considerable discretion in implementing them. Most executive actions affecting their timing and use are routine and consistent with their purposes. The problem arises when the executive branch delays or refuses to use appropriations based on disagreement with their purposes. These are known as “policy impoundments.” No court has recognized a constitutional power on the part of the president to engage in policy impoundments; rather, doing so is widely regarded as a breach of the president’s constitutional obligations.^[1]See here and here for background.

The Impoundment Control Act of 1974 (ICA) was enacted in response to policy impoundments by the Nixon administration. As its title indicates, the ICA is fundamentally designed to limit and regulate impoundments. It requires the president to notify Congress in a special message when spending under an appropriation is “deferred” (delayed), and it limits the permissible reasons for deferrals. Policy differences are generally not a permissible reason.

The only exception is when the president sends a special message to Congress proposing that it “rescind” (in effect repeal) an appropriation “for fiscal policy or other reasons.” Funds proposed for rescission may be withheld for up to 45 days to give Congress time to consider the president’s proposal, but they must be released if Congress fails to complete action on a rescission bill within that time window.

The ICA assigns the Comptroller General of the United States, head of the Government Accountability Office (GAO), investigative and enforcement responsibilities relating to impoundments. Among other things, the Comptroller General must report to Congress when GAO determines that the executive branch has impounded funds without submitting a required special message. In the case of an unreported rescission, the Comptroller General’s report has the same effect as a presidential special message, triggering the 45-day deadline for withholding funds. The ICA authorizes the Comptroller General to sue to require the release of funds impounded in violation of the Act after giving Congress 25 days advance notice of intent to sue.^[2]See here and here for background on the ICA.   

Foreign assistance funds and Global Health Council v. Trump

In January 2025 the president and the secretary of state ordered a blanket 90-day suspension of billions of dollars in congressionally appropriated foreign assistance funds in order to “review” their “alignment” with Trump administration policies. The executive order requiring the review clearly telegraphed its outcome: “The United States foreign aid industry and bureaucracy are not aligned with American interests and in many cases antithetical to American values.”  

This suspension prompted a lawsuit by prospective recipients of the funds. In March 2025, a federal district court concluded that the suspension was unconstitutional and violated the Administrative Procedure Act as well as the ICA. Based on statements by the president and other administrations officials, the court found that they had no intention of spending the funds. Indeed, administration lawyers told the court that the review was complete and most  congressionally appropriated foreign assistance funds would be canceled. Accordingly, the court issued an injunction requiring that the funds be made available for obligation.

On August 13, a panel of the D.C. Circuit in a 2-1 decision vacated the district court’s injunction. Among other things, the appellate court adopted the administration’s argument that a suit by the Comptroller General under the ICA provided the exclusive means of challenging allegedly illegal impoundments; therefore, the grantees could not independently seek judicial review. 

The administration’s belated and wholly insincere invocation of the ICA

The Trump administration has long maintained that the ICA is unconstitutional, and its actions in this case were consistent with that view. Its failure to submit a special impoundment message on its suspension and determination to forego use of foreign assistance appropriations was a flagrant violation of the Act.

But administration lawyers have now warmed to the ICA, invoking it as a means to fend off challenges to impoundments. Their position is set forth at length in an emergency application they filed with the Supreme Court in the Global Health Council case.^[3]Supreme Court intervention proved to be unnecessary, but the application still provides a useful exposition of the administration’s position. They laud the ICA as a mechanism to initiate “negotiations” between the executive branch and Congress over impoundments and facilitate “interbranch dialogue.” They complain that allowing private parties to challenge impoundments would “circumvent the ICA’s procedures” and “preempt and thwart negotiations between the political branches over the expenditure of appropriated funds.” Allowing other parties to “leapfrog” the Comptroller General and sue would upend the “carefully calibrated process” the ICA sets out for the political branches to resolve disputes over impoundments and seek judicial intervention only as a last resort.

The administration’s embrace of suits by the Comptroller General is a subterfuge

Using the Comptroller General’s authorization to sue under the ICA as the basis to foreclose suits by other parties is both a perversion of the Act and wholly disingenuous. If the Comptroller General did sue, the administration would surely contest his constitutional authority to do so and could well prevail. Moreover, the administration is working hard behind the scenes to impede the Comptroller General’s ability to sue. Clearly, what the administration really seeks here is a catch 22 situation in which nobody can obtain judicial review of its impoundments.

More than a decade after enactment of the ICA, the Supreme Court ruled that the Comptroller General is a legislative branch official who cannot perform “executive” functions. Suing to enforce a law is fundamentally an executive function. Furthermore, the Comptroller General would be suing as an agent of Congress and members of Congress generally lack standing to sue to enforce a law. Trump administration lawyers are well aware of all this. In fact, their emergency application hints several times that they would oppose such a suit as nonjusticiable.  

Additionally, the administration has actively sought to obstruct GAO’s functions under the ICA. OMB and executive agencies have been uncooperative with regard to GAO’s impoundment investigations. OMB also induced House appropriators to cut GAO’s budget by half and to add statutory language restricting its ability to bring suits under the ICA.    

The administration’s position is not only devious but wrong

Contrary to the administration’s contention and the D.C. Circuit’s holding in Global Health Council, the ICA does not foreclose other judicial remedies. In fact, it says the opposite:

“Nothing contained in this Act, or any amendments made by this Act, shall be construed as . . . affecting in any way the claims or defenses of any party to litigation concerning any impoundment.”

The Senate report on the ICA legislation affirms the clear meaning of this disclaimer:

“The authority of the Comptroller General is not intended to infringe upon the right of any Member of Congress, or any other party, to initiate litigation.” (Emphasis added)

The administration and the D.C. Circuit maintain that the statutory language and legislative history are ambiguous, but their arguments are unpersuasive. At the very least, they are insufficient to rebut the strong presumption in favor of judicial review.

Finally, the assertion that it would not make sense to permit outside parties to upset the ICA’s mechanism for “interbranch dialogue” over impoundments defies reality. No such dialogue is at work here, nor apparently in other impoundments by this administration. Rather, the administration simply acts unilaterally to effectively cancel appropriations in blatant disregard of the ICA while a quiescent Congress stands by. Even worse, the House shamefully aids the administration’s efforts to undermine GAO’s work to enforce the Act.

Impoundment suits by parties other than the Comptroller General can’t interfere with interbranch political dialogue where none exists or is wanted. On the other hand, permitting the ICA to operate as a shield against such suits constitutes a very real and serious interference with the legal rights of outside parties who are harmed by illegal impoundments. The D.C. Circuit acknowledged that the Global Health Council plaintiffs suffered “immense harm” from the foreign assistance impoundment and would otherwise clearly have standing to sue to redress it. But this is exactly the outcome administration seeks.

These are challenging times for the federal judiciary. Donald Trump’s second administration is stocked with unquestioning loyalists who share his indifference to democratic norms and the rule of law. Justice Department leaders disregard their ethical duties of candor and good faith toward the courts. Congress is missing in action as a coequal branch of government. This leaves federal judges as the lone constraint against Trump’s authoritarian tendencies.

How are they doing? It’s too soon to say with any confidence. Most cases are still in preliminary stages with the great majority of rulings coming from district courts. There are few appellate rulings, particularly decisions that address the merits of Trump’s actions. Nevertheless, a couple of initial observations seem relevant.

Judges are in a difficult position

Courts are not designed to be the sole check on presidential conduct. It’s a role they’ve been forced to assume by default given the absence of other traditional guardrails. (See above) Courts are necessarily reactive and limited to resolving legally justiciable disputes within their jurisdiction brought by parties with legal standing. They are deliberative; facts and legal arguments must be developed and weighed and the parties heard. This takes time. Their enforcement powers are limited. Our legal system generally assumes that parties will respect the courts and deal with them honestly. The Trump administration frequently challenges this assumption—stonewalling judges and engaging in obfuscation, outright lies, and other acts of bad faith.

Trump administration actions have already triggered a host of lawsuits and adverse lower court rulings

It’s hard to keep track of all the lawsuits challenging Trump administration actions, but they are well into the hundreds and growing. (One website lists over 370 such cases as of now.) Clearly, federal district courts aren’t reluctant to rule against Trump. This is true of both Democratic and Republican-appointed judges. One analysis shows the administration losing over 75 percent of cases decided in February through May 2025, with Republican-appointed judges ruling against the administration almost as frequently (72%) as Democratic-appointed judges (80%).

The administration has fared much better at SCOTUS

Acting through its emergency (aka “shadow”) docket, the Supreme Court has overturned or limited lower court injunctions against the Trump administration multiple times. As of July 28, the Court granted the Trump administration relief in 18 of 21 cases. Some of these rulings came with no explanation and often over the dissent of one or more liberal justices. The stark contrast between the Trump administration’s success rate in the lower courts and at the Supreme Court has received considerable attention from politicians, pundits, academics, and the media.

What accounts for the difference?

Here are some explanations that have been offered.

Selective appeals. Comparing win-loss percentages in the abstract is misleading.^[1]See here and here for more detailed critiques of the numbers and related issues. The Trump administration has taken emergency appeals to SCOTUS in just 21 out of well over 100 adverse lower court rulings. (One source lists 165 such rulings as of mid July.) This suggests that administration lawyers are seeking emergency relief only in what they regard as their strongest cases. Also, most of these 21 cases turn on technical issues of standing, jurisdiction, and venue rather than the underlying merits. Indeed, Administration lawyers have deliberately avoided Supreme Court review of the merits.

Overzealous district courts. This, of course, is the Trump administration’s stock explanation. Stephen Miller railed against adverse rulings by “communist crazy judges.” Trump himself called for the impeachment of one judge who ruled against him, drawing a rebuke from Chief Justice Roberts. While these reactions are absurd, more rational voices maintain that the lower courts have indeed sometimes overreached. (See here and here.) One example is Trump v. AFGE, where a district court enjoined the administration from even developing plans for staff reductions. The Supreme Court stayed that injunction with only Justice Jackson dissenting. Forum-shopping may be a factor in some cases.

Political bias by SCOTUS. At the other extreme, many on the left who have long accused the Supreme Court’s conservative majority of political bias now suggest that the conservative justices are in the tank for Trump. (See here and here.) Even the New York Times calls this assertion “unfair.” At the very least, it’s premature. The real test will come when the Court reaches the merits of cases where Trump’s actions seem clearly unlawful, such as his birthright citizenship executive order, invocation of the Alien Enemies Act, and extensive use of tariff authority that the Constitution assigns to Congress. Rulings favoring Trump in these cases would fundamentally contradict jurisprudential principles the conservatives usually embrace and be real cause for concern.  

Appeasement. Another theory is that the Supreme Court is reluctant to confront Trump and is carefully picking its battles with him out of fear that at some point he might defy it. (See here and here.) One pundit refers to this as “the appeasement theory.” However, it’s very doubtful that Trump would disregard SCOTUS decisions. While Trump has said outrageous things about lower court judges, his statements regarding the justices are restrained. He has expressed respect for the Court and said that he would never defy it. This is probably one instance in which Trump can be taken at his word since he would almost surely lose a showdown with SCOTUS. Public opinion across the political spectrum overwhelmingly supports the notion that court decisions must be honored, particularly those of the Supreme Court. Trump tends to retreat in the face of strong pushback.

Ideological leanings that transcend Trump and his policies. The conservative justices have a deeply held (albeit extreme) philosophical bias toward a strong executive. This was evident in their legally strained decision according presidents sweeping immunity from criminal prosecution. They have long leaned toward the unitary executive theory that underlies two emergency orders this year, Trump v. Wilcox and Trump v. Boyle. The conservatives also have a general (albeit malleable) preference for judicial restraint. An example of this was the Court’s decision in Trump v. CASA that largely rejected the issuance of nationwide injunctions against the administration by individual district court judges. It may also be reflected in stays of lower court injunctions on standing and jurisdictional grounds.

By contrast, liberal judges (and justices) are generally more results-oriented and willing to support aggressive intervention by the courts. Again, these are long-standing differences between liberal and conservative approaches to judging that predate Trump. Liberals may also prove less willing to grant the Trump administration and its lawyers the deference and presumption of regularity usually accorded to presidents and their legal representatives. (More on this below)

SCOTUS needs to do more to explain itself

One major difficulty in understanding the Supreme Court’s actions in Trump-related emergency docket cases is that the majority justices offer little help by way of explanation. Seven rulings provide no explanation whatever. The most egregious may be McMahon v. New York, in which the Court stayed a lower court injunction against the Trump administration’s 50 percent staff reduction at the Department of Education. It drew a stinging 19-page dissent from Justice Sotomayor joined by the other two liberals. The majority offered no explanation or response and failed even to state the grounds on which it acted.

This case cries out for an explanation. Justice Sotomayor’s dissent is quite persuasive on the merits. She notes that the district court developed an extensive record demonstrating that this massive downsizing was part of the administration’s de facto effort to abolish the Education Department without congressional authorization, and that the claim that it was merely about enhancing efficiency and reducing “bloat” was pure pretext. She also observes that the administration declined to offer a defense on the merits but “in a now-familiar move, it presents a grab bag of jurisdictional and remedial arguments to support its bid for emergency relief.” The majority apparently chose something from this grab bag, but there’s no way of knowing what or why.    

The Court does a disservice to litigants, lower courts, and the public by refusing to explain its actions. It’s hard to understand why it can’t offer at least a brief rationale, or at an absolute minimum cite the legal grounds for its action. Failure to explain its actions also does a disservice to the Court itself by damaging its credibility and providing fodder for its critics.

Outlook

It will take time, perhaps years, to fully assess the judiciary’s effectiveness in restraining Trump. In the meantime, a few general predictions can be offered.

The Supreme Court will surely play a pivotal role as key cases reach it for decision on the merits. Both conservative and liberal justices probably will generally follow their usual jurisprudential approaches and leanings in deciding them. If so, neither Trump nor his critics will be wholly satisfied with the results. Assuming the Court eventually decides them, Trump is likely to win the unitary executive cases and lose on the cases dealing with birthright citizenship, the Alien Enemies Act, and tariffs.

Other cases probably will produce mixed results as well. Trump is certainly more aggressive in testing the law (and the courts) than any of his predecessors. At the same time, Congress has granted presidents sweeping, often ambiguous statutory authorities. Many statutes apply based on presidentially declared “emergencies,” often subject to loosely defined conditions. Trump has relied heavily on such statutes.  

One potentially decisive factor in a number of cases may be how the courts respond to Trump’s invocation of emergency powers. Typically, courts are quite deferential to such presidential assertions. However, they may not accord the Trump administration the usual benefit of the doubt given Trump’s serial dishonesty and his administration’s shameful pattern of disingenuous interactions with the courts.