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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.

 

 

 

The health of our democracy and ultimately its existence depend on the continued viability of the system of separation of powers and checks and balances ingrained in our Constitution. President Trump’s second term provides a stress test for this system, highlighting its weaknesses. The most critical of these is the decline of Congress as an effective, coequal branch of government. If our democracy is to endure, Congress must reverse its downward spiral and reclaim its central role under the Constitution.

Congress has been in decline for some time

It’s no accident that Congress, the branch of the federal government closest to the people, is established by the first article of the Constitution. The Federalist Papers No. 51 observed: “In republican government, the legislative authority necessarily predominates.” Over time, however, Congress has in effect demoted itself from arguably the preeminent among three coequal branches to the least significant.

For decades, Congress has gradually ceded its policymaking functions to the president and the executive branch bureaucracy; it now mainly reacts to their policy agendas. Congress struggles to carry out its most basic responsibility of providing appropriations to keep the government running. It has also largely abandoned meaningful oversight of the executive branch; what passes for oversight today is mostly partisan posturing. 

Congress’ neglect of its constitutional obligations distorts the roles of the other two branches as well. The executive branch, originally designed to carry out congressional policies, now exercises far more policymaking authority than the framers intended, particularly on domestic matters. The federal judiciary, described by Alexander Hamilton as the “weakest” and “least dangerous” branch, has been forced to assume a much larger role than originally envisioned in order to fill gaps left by Congress.

Trump exposes and exploits Congress’ weaknesses as never before

Congress’ shortcomings have been long in the making but less obvious before Trump. His predecessors often pushed the limits of their powers and sometimes exceeded them, but they generally respected democratic and legal norms. Even Trump was fairly constrained in his first term. However, his authoritarian tendencies have now fully emerged. He has stocked his second term administration with unquestioning loyalists and enablers who share his indifference or even hostility to democratic values and the rule of law. Many such dubious appointees were confirmed by a compliant Senate. The Justice Department is now run by ethically challenged lawyers who disregard their obligations to deal with the courts in candor and good faith.   

Trump takes full advantage of the broad, ambiguous authorities past Congresses delegated to the president, and then some. See, for example:

• • his highly dubious invocation of the Alien Enemies Act to support extremely aggressive deportation practices;
  • his extensive and erratic use of tariffs, an authority the Constitution explicitly assigns to Congress;
  • ordering the bombing of Iranian nuclear facilities, which at the least tested the limits of presidential war powers; and
  • his clearly unconstitutional attempt to redefine birthright citizenship and refusal to implement the ban on TikTok imposed by statute and affirmed by the Supreme Court.

Additionally, Trump has dismantled federal programs, fired federal employees, and refused to spend congressionally enacted appropriations in ways that raise a host of legal issues. The Government Accountability Office (GAO), Congress’ “watchdog” agency, is investigating many actions involving the withholding of appropriated funds, as the law requires it to do, and has already determined that three such actions violated the Impoundment Control Act. Through all of this, Congress sits on the sidelines, leaving the federal judiciary as the only guardrail against executive branch excesses. (Remarkably, the House Appropriations Committee actually sought to impede GAO’s impoundment investigations.)^[1]The Senate Appropriations Committee rejected this effort. The outcome remains to be determined. 

Congress’ shortcomings as a legislative body were on full display during passage of Trump’s so-called “big, beautiful bill.” This massive, highly consequential legislation is widely unpopular. It will increase the already out of control federal debt by trillions of dollars. The nonpartisan and usually restrained Committee for a Responsible Federal Budget described it as “a massive fiscal capitulation” by Congress and “the single most expensive, dishonest, and reckless budget reconciliation bill ever.”

The bill never received serious substantive consideration in Congress. Instead, congressional participation was superficial and wholly reactive. There was no effort at bipartisanship and evidently little if any significant policy debate even within the Republican majority in either chamber. The overriding focus was on garnering by any means enough Republican votes to pass what Trump wanted. Even the timing reflected Congress’ subservient role. Both chambers conducted marathon sessions and urgent deal-making to meet Trump’s artificial July 4 deadline for passage. It was bizarre to see Republicans gleefully celebrating passage of a bill that many probably hated.    

In sum, Congress has relegated itself to virtual irrelevance as a coequal branch of government. The current Republican majorities have gone even further, reducing it to a de facto extension of the Trump administration.

Congressional decline reflects the sad state of our political system

The decline of Congress is exacerbated by the greatly increased polarization of our politics. Due to gerrymandering and demographic factors, few congressional races today remain competitive. Previewing the 2026 midterm elections, only 18 of 435 House races are rated as tossups and only three of 35 Senate races. One party or the other is favored (usually heavily) in all the rest. The result is a two-party duopoly with the main competition occurring in primary elections where each party’s base dominates. The bases of both parties have become progressively more influential, more extreme, and more polarized.

In this political environment, congressional candidates face their greatest challenge in primary rather than general elections, including incumbents who live in fear of being “primaried.” As a result, they are heavily incentivized to prioritize ideological purity and party loyalty above all else. Few members of Congress today seem motivated by serving the public interest or even the interests of their own constituents beyond their party’s base voters. Even fewer seem to care about Congress as an institution. The most prominent members now are those who perform for their bases and media allies.   

Bipartisan efforts at problem-solving have virtually disappeared; party line votes predominate. The result is highly partisan legislation such as the “big, beautiful bill” when one party holds a “trifecta,” i.e., control of both chambers of Congress and the White House, and gridlock when political power is divided.

Congress and the political parties are unrepresentative of the American people

Polarization in Congress and in our political party duopoly might be understandable if the American public fell largely into two ideologically extreme and hostile camps. But this is not the case. Most Americans are more pragmatic than ideological and prefer constructive engagement and compromise. Indeed, majorities of Americans agree on many issues that divide the political extremes.

With Congress and the two major parties so unrepresentative, it’s no wonder that the public holds all of them in low esteem. Public approval of Congress stands at an abysmal 23 percent. Both political parties are also viewed unfavorably. Far more Americans identify as independent than with either major party.

Can Congress’ decline be reversed?

Yes, if enough Americans are willing to overcome their apathy or cynicism and engage in politics. At a minimum, they must vote. Turnout in the primaries where most elections are now decided is extremely low. A meager one-fifth of the eligible electorate voted in the 2022 midterm elections. Only about two-thirds of potentially eligible voters participated in the 2024 presidential election, meaning close to 90 million did not.

A major influx of ideologically moderate, pragmatic voters supporting like-minded candidates particularly in primary elections could do much to change the political landscape. This might come through a third-party movement or by working within the existing two-party structure. Either approach would require a critical mass of new voters and at least one entity to serve as a catalyst and organizer.

Third parties have a poor track record. Election rules are stacked against them, with many states limiting open primaries. The two parties also have a huge advantage in terms of  financial resources. The No Labels organization was unable even to field a presidential candidate in the 2024 election despite the unpopularity of the major party choices. On the other hand, dissatisfaction with the two major parties has caused public support for a third party to increase greatly over recent years.

Working with the two parties might be a more practical way to force them back closer to the center. After all, Donald Trump was able to take over the Republican Party from the outside. While Trump firmly controls the Republican base, his power likely derives as much from fear as devotion. Only about half of Republican voters identify as MAGA types. Clearly, the Democratic party, widely perceived even by its own adherents as “out of touch, woke, and weak,” is currently searching for an identity and might be a likely target now.

There are existing entities that could spearhead either approach. No Labels still exists as a nonpartisan organization despite its failure to come up with a presidential ticket in 2024. Another possibility is Third Way, a Democratic leaning but centrist outfit.

Any such effort should start modestly, targeting promising House and Senate races at the grass roots. Both the House and Senate are closely divided overall with very narrow working majorities. Thus, a relatively small group of incoming members who are willing to put constructive engagement above party loyalty and work across the aisle could wield outsized influence and even hold the balance of power in each chamber. (Recall the pivotal role that centrist Senators Manchin and Sinema recently played.) They might link up with current members who claim to share these values, such as the bipartisan Problem Solvers Caucus in the House.

Will anything like this actually happen?

One can only hope. Benjamin Franklin famously observed that the framers of the Constitution gave Americans “a republic, if you can keep it.” The citizens of a republic get the government they deserve and are ultimately responsible for the quality of the office holders they elect. Thus, Congress’ future and the fate of our democracy are firmly in the hands of the citizenry.

 

The House Appropriations Committee recently reported a bill that cuts the budget of the Government Accountability Office (GAO) by almost 50 percent. The bill also limits GAO’s ability to bring lawsuits specifically authorized by law to enforce the Impoundment Control Act.

In a June 25 letter to Committee members, GAO’s head, Comptroller General Gene Dodaro, advised that a cut of this magnitude “would have grave, pervasive effects in undermining our support of the Congress.” Specifically, he said it would require an immediate staff reduction of at least 2,200 (or 63 percent) and eventually more, “leaving GAO with only skeletal staffing.” He went on to detail many aspects of GAO’s work that would be jeopardized.

According to a Legislative Branch Appropriations Subcommittee fact sheet, this drastic budget cut was intended to “curtail the agency’s self-directed, liberal initiatives” and make its work more “reflective of congressional priorities.”

This explanation is breathtakingly disingenuous and obviously pretextual. Almost all of GAO’s work (about 95 percent) is done pursuant to specific congressional requests and statutory mandates. What little self-directed work the agency does also directly supports Congress. The prime example is GAO’s biennial “high-risk” list, which identifies government programs and activities most vulnerable to fraud, waste, and mismanagement and thus provides Congress a roadmap for oversight and reform legislation. This project has received bipartisan praise from Congress for decades.

The notion that there is anything “liberal” (or “conservative”) about GAO’s work, self-directed or otherwise, is absolute nonsense. GAO has a longstanding and unblemished record of producing fact-based, objective, nonpartisan analyses. Of necessity, GAO frequently addresses politically controversial subjects; its conclusions are, of course, fair game for debate. However, its work has long been accepted by all sides in Congress as unbiased politically and ideologically.

Nor is there any cost-savings justification for the huge budget cut. The Committee’s cut to GAO is greatly disproportionate to reductions in other legislative branch budget categories. Moreover, any cut to GAO’s budget actually costs taxpayers. GAO’s work regularly results in taxpayer savings that far exceed its budget. In fiscal year 2024, it achieved $67.5 billion in financial benefits for the federal government—a return of about $76 for every dollar invested in GAO.

What, then, is the real reason for this draconian budget cut?

Spearheaded by Office of Management and Budget (OMB) Director Russell Vought, the Trump Administration is intent on seizing the power of the purse from Congress through aggressive and probably often illegal impoundments–i.e., refusals to spend appropriations enacted by Congress. But the Impoundment Control Act limits the executive branch’s ability to impound and assigns important investigative and enforcement powers to GAO. This includes authority to sue the executive branch to compel release of illegally impounded funds.

Clearly, OMB seeks to hamstring GAO’s ability to carry out its duties under the Act, particularly to bring enforcement suits. (This oversight-averse Administration probably sees limiting GAO’s ability to carry out its functions in general as an added benefit.)  All this is cynical but unsurprising. What’s surprising–actually shocking–is that OMB has successfully enlisted House appropriators in its scheme. The appropriators are apparently willing to decimate their own “watchdog” agency in order to prevent it from defending their own duly enacted appropriations from illegal impoundment by the executive branch.

What’s happening here is particularly distressing on three levels. First, it’s grossly unfair to GAO and its staff. They are being punished not for straying from their mission to conduct “self-directed, liberal initiatives” as the appropriators falsely claim, but for carrying out their explicit obligations under the law. The Impoundment Control Act requires GAO to investigate and report to Congress on impoundments and specifically assigns it authority to bring enforcement actions when necessary.

Second, the proposed budget cut would cause significant harm to the public. GAO is the only wholly independent, nonpartisan source of executive branch oversight within the federal government. As noted, its work annually saves taxpayers billions of dollars. GAO’s recommendations also achieve substantial non-monetary benefits in terms of increased efficiency and effectiveness of government operations.

Third, curbing GAO not only undercuts the appropriators’ own interests (or what they should be) but undermines the rest of Congress, which values and makes heavy use of GAO. GAO averages 627 new congressional requests for studies each year from leadership, committees, and statutory mandates. Almost all congressional committees and over half of all subcommittees regularly request work from GAO. The House appropriators’ budget cut would prevent GAO from performing much of this work.

For years, Congress has been ceding its authority to the executive branch, thereby threatening the system of separation of powers and checks and balances on which the health of our democracy depends. For its own sake and the sake of the country, it needs to reassert itself as a coequal branch of government.  

The last thing Congress should do in this regard is shoot itself in the foot by weakening its own resources. Indeed, it should not only reject the severe cut to GAO’s budget but strengthen GAO as an arm of Congress by taking control of the appointment of the Comptroller General. (It should do the same for the Librarian of Congress given the vital services provided by the Congressional Research Service.)

Hopefully, Congress will come to its senses and act in its own institutional interests and the public interest by reversing this perverse, ill-considered attack on GAO.   

Gene Dodaro’s term as Comptroller General of the United States ends in December 2025, providing Congress an opportunity to update the appointment authority for this important legislative branch official. The 1921 law that created the Government Accountability Office (then General Accounting Office) (GAO) made its head, the Comptroller General, a presidential appointee. This was necessary at that time since GAO was originally assigned mainly “executive” functions. The GAO of today, however, bears little resemblance to the 1921 version. Executive functions are no longer part of its mission. The contemporary GAO serves exclusively as a legislative branch agency supporting Congress in the exercise of its constitutional responsibilities.

In view of GAO’s evolution, there is no longer any reason for the President to appoint the Comptroller General and every reason for Congress to choose the head of this key congressional agency. Continued presidential appointment of the Comptroller General is both anachronistic and incongruous. Undoubtedly, Congress would make the Comptroller General a congressional appointee if it were creating GAO today.

Congress should now take control of the appointment of the head of its own “watchdog” agency as it has done with other legislative branch agencies such as the Congressional Budget Office Director and, recently, the Architect of the Capitol. The need for Congress to appoint the Comptroller General transcends political considerations such as which party controls Congress or who occupies the White House. What’s at stake is Congress’s fundamental institutional interests as a coequal branch of  government.

Background

Under 31 U.S.C. 703, the Comptroller General is currently appointed by the President with the advice and consent of the Senate for a non-renewable, 15-year term.^[1]Section 703 contains similar provisions that govern the appointment of the Deputy Comptroller General, although a Deputy has never been appointed under those provisions. Once appointed, a Comptroller General can only be removed from office by impeachment and conviction or by joint resolution of Congress based on limited grounds.

When a vacancy in the office arises, section 703 provides for a “commission” of specified members of Congress to recommend at least three potential nominees to the President. The commission consists of

• • the Speaker of the House,
  • the President pro tempore of the Senate,
  • the majority and minority leaders of the House and Senate, and
  • the chairs and ranking members of the House and Senate oversight committees.

The law provides that the President can request additional names, but it does not require the President to choose a nominee from among individuals recommended by the commission.

The Presidential Appointment No Longer Makes Sense

The Budget and Accounting Act, 1921, which created the office of Comptroller General and the GAO, transferred to them functions that had previously been performed by the Treasury Department. Since these were primarily “executive” functions, the 1921 Act designated the Comptroller General a presidential appointee. Apart from Senate confirmation, the Act made no provision for congressional input into the appointment.

Through the years, GAO’s functions evolved from mainly conducting financial audits of executive agency accounts and making legally binding determinations to performing broad evaluations of federal programs and activities to assist Congress in its legislative and oversight work. Recognizing this evolution, the current appointment process was enacted in 1980^[2]Pub. L. No. 96-226, 94 Stat. 311 (1980). to give Congress an enhanced (albeit only secondary) role based on “the special interest of both Houses in the choice of an individual whose primary function is to provide assistance to Congress.”^[3]S. Rep. No. 96-570 (1980), p. 10.

The 1980 law was the result of a compromise. Initial versions of this legislation provided for Congress to appoint the Comptroller General. (A Senate sponsor described one such bill as “a congressional declaration of independence from the White House.”)^[4]121 Cong. Rec. 25608 (1975) (remarks of Senator Metcalf). However, the Justice Department objected that a congressional appointment would preclude GAO from performing executive functions. The enacted version thus retained the presidential appointment and settled for enhanced congressional input in an attempt to preserve GAO’s constitutional ability to carry out the residual executive functions it still performed at that time.

This compromise proved to be unavailing. In Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme Court concluded that, notwithstanding the presidential appointment, the Comptroller General was a legislative branch official answerable to and removable only by Congress and GAO was a legislative branch agency. Therefore, the Court held, they could not constitutionally perform any executive functions. In view of this decision, there was no longer any legal reason for the Comptroller General to remain a presidential appointee. Subsequently, various executive functions were transferred from GAO back to the executive branch.^[5] See Pub. L. No. 104-53, 109 Stat. 514, 535 (1995), and Pub. L. No. 104-316, 110 Stat. 3826, 3845-46 (1996).

GAO’s role as an arm of Congress has become even more pronounced since then. GAO’s 2024 Performance and Accountability Report states that the agency “exists to support the Congress in meeting its constitutional responsibilities” and that the “vast majority” of its work is conducted in response to congressional mandates or requests. Specifically, the report notes that this describes 96 percent of its evaluations. GAO’s remaining work likewise serves Congress. For example, its self-initiated, biennial “high-risk list” provides a roadmap for congressional oversight and reform legislation. Another example is GAO’s bid protest function, which one court observed “provides an important congressional oversight mechanism” regarding federal agency procurement practices.^[6]Lear Siegler, Energy Products Division v. Lehman, 842 F.2d 1102 (9^th Cir. 1988).

No Other Exclusively Legislative Branch Agency Has a Presidential Appointee

GAO is the only strictly legislative branch agency that is still headed by a presidential appointee. Presidential appointees lead two other legislative branch agencies: the Library of Congress and the Government Publishing Office (formerly Government Printing Office).^[7] Congressional Research Service, Legislative Branch Agency Appointments: History, Processes, and Recent Actions (2024). Unlike GAO, however, both these agencies continue to perform some executive functions. The Library of Congress administers federal copyright laws, and the Government Publishing Office provides printing and publishing services to executive branch agencies. No other legislative branch agency has a presidential appointee. Notably, the Director of the Congressional Budget Office has been a congressional appointee since the creation of that agency in 1974.

The appointment process for the Architect of the Capitol and its evolution is particularly instructive here. Prior to 1990, the Architect was appointed by the President with no formal congressional involvement. The Legislative Branch Appropriations Act, 1990 retained presidential appointment of the Architect but enacted a process modeled on the Comptroller General’s whereby a congressional commission recommended potential nominees to the President.^[8] Pub. L. No. 101-163, 103 Stat. 1041, 1068 (1989).  In 2023, Congress changed the law to eliminate the presidential appointment and instead provide for appointment of the Architect by majority vote of the congressional commission.^[9]2 U.S.C. 1801a.

Congress Should Control the Appointment of Its Own “Watchdog”

Retaining the presidential appointment of the Comptroller General is not only unnecessary and anomalous but also undercuts Congress’s institutional interests. The Comptroller General and GAO answer to Congress alone. While GAO’s work benefits the executive branch and the public, the agency exists to serve Congress. Therefore, Congress alone should decide who heads it. The 1980 law that enacted the current appointment process was at best a half measure toward this goal. As noted above, it retained the presidential appointment in a compromise that did not pan out and that was based on a premise that is no longer relevant.

While the law does provide for congressional recommendations, it leaves the final choice to the President. The President can choose from among these recommendations or disregard them and select someone else. Placing the Comptroller General appointment in congressional hands would guarantee Congress its first choice for Comptroller General. In addition to vindicating Congress’s institutional interests, keeping the selection within Congress would simplify and expedite the appointment process.

GAO is the only source of nonpartisan, wholly independent oversight of the executive branch within the federal government. To be of maximum effectiveness to Congress as well as the public, it must  operate without fear or favor, reviewing executive branch programs and activities objectively and producing unvarnished, fact-based analyses. In these politically polarized times, a bipartisan congressional commission is best suited to select an individual who possesses the qualifications and credibility to maintain GAO’s high standards.

A Modest Statutory Fix

The update can be accomplished simply by amending 31 U.S.C. 703 to provide for appointment of the Comptroller General (and Deputy) by majority vote of the congressional commission it already establishes.^[10]Congress should also consider appointing the Librarian of Congress, particularly in view of the congressional support functions performed by the Library’s Congressional Research Service. This is a … Continue reading

 

 

 

The Supreme Court heard oral argument last week on the validity of so-called “nationwide” injunctions in the context of President Trump’s Birthright Citizenship Executive Order. Strong conceptual and practical arguments can be made against nationwide injunctions. Such arguments might be compelling if dealing with a presidential administration that respected the rule of law. However, it’s hard to imagine a worse test case challenging this practice than Trump and his Birthright Citizenship EO.

The Trump EO is, as one district judge (a Reagan appointee, no less) observed, blatantly unconstitutional. It contradicts the plain language and original history of the Fourteenth Amendment as well as longstanding Supreme Court precedent. Evidently, it’s the brainchild of John Eastman, also known for advocating that Vice President Pence could reject the 2020 election results. All lower federal courts to rule on the EO so far found it unconstitutional. Three courts issued nationwide injunctions against its enforcement. If ever an action justified a nationwide injunction on the merits, the Birthright Citizenship EO is it.

But there is an additional key consideration here. The strategy employed by the Trump Administration regarding the Birthright Citizenship EO illustrates the bad faith and legal gamesmanship characteristic of many of its actions. Trump’s lawyers did not ask the Supreme Court to overturn the three lower court decisions holding the EO unconstitutional as applied to the individual plaintiffs in those cases. Rather, they only contested the nationwide injunctions the three judges issued. While this approach may seem odd at first blush, the rationale underlying it became clear during the oral argument, particularly under questioning by Justices Kagan and Barrett, and is highlighted here.

Trump’s attorneys must recognize there is little chance that the Supreme Court will uphold the EO’s risible attempt to redefine birthright citizenship if it gets a case on its merits. No self-respecting textualist/originalist jurist could support it. Thus, one prong of the strategy is to keep such a case away from the Court. The other prong is to force individual plaintiffs to contest the EO over and over in the 94 federal judicial districts.

As Justice Kagan pointed out during the oral argument, this cynical strategy could work if the nationwide injunctions are lifted. A loss in an individual district leaves the EO in place in the remaining districts until the next challenge comes along. If the plaintiffs challenging the EO continue to be successful in these individual cases, there is no losing plaintiff to appeal to a higher court and the EO retains life. The Trump Administration might try its luck at taking a loss to a circuit court of appeals, but even if it lost again at that level, the EO could still operate in other circuits. (In response to questions by Justice Barrett, Trump’s solicitor general refused to commit that the Administration would honor an adverse court of appeals precedent.)

This approach could persist for some time, creating chaos and distress for those whose citizenship is at risk under the EO and who don’t have the wherewithal to challenge it. Children born in one state or federal judicial district could be treated as U.S. citizens while similarly situated children born in a different jurisdiction would not.        

This is a prime example of what happens when Trump’s impulses are free from internal constraints. Apparently, Trump’s craven and ethically challenged lawyers can’t bring themselves to tell him that his Birthright Citizenship EO is clearly unconstitutional. They seem willing to let this drag on until an overwhelming number of federal districts or circuits rule against the EO. While the justices may (rightly) have qualms about nationwide injunctions, hopefully they will find some way to prevent Trump and his enablers from continuing this travesty.      

Donald Trump’s dizzying assault on democratic norms and the rule of law strains many institutions in and outside of government. One major casualty is the Department of Justice (DOJ), which has suffered a severe loss of credibility. Attorney General Pam Bondi acts more like a Trump cheerleader than the Nation’s chief law enforcement officer. She and other DOJ leaders such as Emil Bove place unquestioning subservience to Trump above allegiance to their constitutional oaths and their ethical obligations as officers of the court to treat the judiciary with honesty and respect.

Evidence of DOJ’s decline abounds.^[1]See here, here, and here. One  striking example is the attempted use of the Alien Enemies Act (AEA) to summarily deport hundreds of illegal migrants to the notorious El Salvador CECOT prison. The AEA deportation operation has been an exercise in bad faith from the outset. It features misuse of a statute that clearly does not apply, disingenuous and downright deceitful legal arguments, stonewalling judges, disciplining DOJ attorneys for excess candor in court, and evading and grossly distorting judicial decisions—including those of the Supreme Court.

The obvious goal of the operation was to deport large numbers of suspected gang members with as little investigative effort, due process, and judicial intervention as possible. To do this, the Trump Administration dusted off the AEA, a 1798 statute that had been used sparingly, most recently during World War II. The AEA grants the president broad power to deport non-resident citizens of an enemy nation that is engaged in declared war or any invasion or predatory incursion against the United States.^[2]See here for background on the AEA.

The deportation operation was developed stealthily and initiated with lightning speed in a way that Justice Sotomayor later observed “can be understood only as covert preparation to skirt both the requirements of the Act and the Constitution’s guarantee of due process.” On March 14, President Trump signed a proclamation invoking the AEA with regard to the Venezuelan gang Tren de Aragua. On the same day, Attorney General Bondi issued a memo to law enforcement officers asserting that Trump’s proclamation authorized the seizure and summary deportation of suspected gang members without a warrant, due process, or judicial review. Deportations commenced the next day, March 15. They included hundreds of Venezuelans as well as illegal migrants from other countries.

The hasty, seemingly haphazard execution of the operation along with the total absence of due process created many problems. From what little is known, there is scant evidence that some (perhaps many) deportees were in fact gang members. Apparently, the evidence of gang membership often consisted of nothing more than tattoos and clothing. Clearly, at least some individuals were wrongly deported.

The most infamous case is Kilmar Abrego Garcia, who is neither Venezuelan nor an alleged Tren de Aragua gang member. (He’s said to be a member of MS-13.) Abrego Garcia was sent to CECOT despite an administrative order prohibiting his deportation to El Salvador. A DOJ attorney conceded  that Abrego Garcia’s removal was a mistake—an act of candor for which he was later fired. Four lower court federal judges and all nine Supreme Court justices concluded unanimously that Abrego Garcia had been wrongly deported and should be returned.

The Trump Administration responded with intransigence and deception. They claimed to be unable to retrieve Abrego Gracia from Salvadoran custody. Trump and Salvadoran President Bukele staged a bit of Kabuki theater at the White House in which Bukele insisted he would not “smuggle” Abrego Garcia back to the United States as Trump looked on approvingly. 

DOJ argued, utterly implausibly, that court orders to “facilitate” Abrego Garcia’s return did not require the U.S. Government even to ask El Salvador to give him back. Attorney General Bondi stated sarcastically that the Government’s only obligation was to provide him a plane ride back to the United States if he somehow extricated himself from Salvadoran custody. Trump later exposed this deceit by acknowledging several times that he could obtain Abrego Garcia’s return by simply asking but that his lawyers “don’t want to do this.”

DOJ continues to prevaricate and stonewall. However, it’s hard to believe the courts will condone this charade that makes a mockery of their decisions. In fact, the entire house of cards that is the AEA deportation scheme will likely collapse.

Ultimately, the courts are almost sure to rule AEA inapplicable by its plain terms. The United States is not at war with Venezuela; the many illegal activities of Tren de Aragua, reprehensible as they are, do not resemble any kind of invasion of the United States; and there’s no evidence that Tren de Aragua is a government actor. On the contrary, U.S. intelligence agencies found no connection between the gang and the Venezuelan government.^[3]See here and here. So far, lower federal courts have consistently rejected AEA’s  application as have most legal experts even on the right.

A preliminary Supreme Court decision already undermines the operation’s key goal of avoiding due process and judicial review. The Court did not reach the issue of whether AEA applied, and it vacated a lower court order against the deportation of Venezuelans on procedural grounds. Importantly, however, the justices concluded unanimously that the deportees were entitled to due process and judicial review on the applicability of the AEA and whether they were in fact covered by Trump’s proclamation invoking it. Specifically, the Court held:

“AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”   

This clearly indicates that no further AEA deportations can occur without due process and the opportunity for judicial review.^[4]Unsurprisingly, DOJ takes an extremely narrow view of what due process is required under this decision. The courts will likely insist on more. Moreover, since the hundreds of initial deportees were denied due process and judicial review prior to their removal, the Supreme Court’s decision seems to mean that their deportations were illegal and, like Abrego Garcia, they should be returned to the United States. This will certainly be true if the courts ultimately rule the AEA inapplicable.^[5]It appears that the Government has the legal right to regain custody of the Venezuelan deportees and return them to the United States. Reportedly, the United States and El Salvador entered into an … Continue reading

Nevertheless, the Trump Administration and DOJ remain defiant. In addition to their continuing gamesmanship with the courts, they are waging a public relations campaign demonizing Abrego Garcia and other deportees along with anyone who supports their return. Of course, whether the deportees are good or bad people is wholly irrelevant. They are entitled to due process as is a person accused of the most heinous crimes. If the Trump Administration can violate their rights with impunity, they can potentially do the same to anyone.

The attacks on judges are reprehensible. Trump described a judge who ruled against him as a “radical left lunatic” and called for his impeachment. Shamefully, Attorney General Bondi joined in this demagoguery, accusing the same judge of “support[ing] Tren de Aragua terrorists over the safety of Americans.”

The end of the AEA operation may come sooner rather than later. Judges are losing patience with DOJ’s mendacious tactics. On April 17, Judge Harvey Wilkinson, a highly respected conservative, wrote a scathing opinion in the Abrego Garcia case deriding DOJ’s legal arguments as “shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

Two days later, the Supreme Court intervened in another AEA case and issued an order by a 7-2 vote barring the deportation of certain detainees “until further order of this Court.” This unusual action is widely seen as a signal that the Court has finally had enough of the Trump Administration’s disingenuous tactics.^[6]See here, here, here, and here for background and analysis. One pundit observed that apparently Justices Alito and Thomas, the two dissenters, “are now the only members of the Court who are still willing to trust the Trump administration to faithfully abide by court orders in an [AEA] case.”  

The AEA operation is also losing the PR battle. By wide margins, the public approves Trump’s efforts to stem illegal immigration and deport illegal migrants who are convicted criminals or otherwise shown to be dangerous. However, polls indicate that most Americans disapprove the AEA operation’s KGB-like tactics of disappearing individuals without due process or judicial review. Also, a large bipartisan majority of the public opposes violation of judicial decisions. Ninety-five percent of Democrats and 82 percent of Republicans say the Trump Administration must abide by decisions of the Supreme Court.

The demise of the AEA deportation operation would vindicate  the rule of law and, hopefully, produce a useful course correction in immigration enforcement. Immigration authorities should prioritize arresting and deporting truly dangerous illegals and conduct the investigative work necessary to ensure that the people they apprehend actually fit that description. They have many tools available to do this and, with the Trump Administration’s control of Congress, the means to obtain any necessary additional resources.

The most lasting damage from all of this may be DOJ’s loss of stature in the eyes of the courts if it continues to engage in contortions like these in its efforts to defend Trump’s often indefensible impulses.