The increasingly loud claim that district courts are abusing their powers by blocking Trump administration policies depends upon a series of indefensibly selective (and easily rebutted) arguments.
"The notion that district judges shouldn’t thwart the will of democratic majorities is antithetical to why the Constitution guarantees the independence of the federal courts in the first place—to stand up against tyrannies of the majority, not roll over to them. This isn’t exactly a controversial."
Not only to stand up against the tyranny of popular majorities, but also to test the policies of who are elected by a majority against the bedrock principles in the constitution, the Bill of Rights and federal law. Just because you won an election with a popular majority, even if it's a landslide, it does not mean that you get to override the basic principles that were given with the consent of the governed.
I agree with term limits but would go further in my crazy world. I’d allow 4 GOP and 4 Dem SCOTUS plus One. That one would have to be put in place with an 80% majority vote.
There is something that nobody is talking about that is bothering me immensely. It's the Judicial power grab in the big beautiful bill. If they pass that bill this whole article will be moot, just like the legislative branch already is and the judicial branch will be.
I'm guessing no one's talking about it because it has no realistic chance of becoming a reality. Even assuming Trump's "Big Beautiful Bill" passes in the first place, any proviso extending either the executive of legislative branch's power of the courts beyond what's already allowed isn't happening, or at least not "happening" in the context of prevailing on appeal. (Yes, a court could opt to nullify that one portion of the bill, if passed.)
No, we are nowhere near "the end of democracy," or the Trump administration assuming unilateral control of government. That's part of Prof. Vladeck's point: Trump may be attempting to ignore the rulings against him, but they're still exactly that – ruling AGAINST him. Not appealing the cases means the district judges in those cases can push for standard-issue sanctions for contempt if they see fit.
Trump may be trying to "forget" about people like Abrego Garcia. We have not, and cannot.
I was just reading about the byrd rules. If a senator invokes it, the way I understand it, everything in the bill that doesn't have to do with the word fiscal can be removed, especially the Judiciary crap
I stand corrected. But if the parliamentarian recommends sustaining the objection the presiding officer or veep can overrule and that takes 60 votes to override.
If I understand the byrd rules correctly, it's going to take, more than likely, a Democratic senator to invoke the rule. It seems only the Senate(& it only takes one) can invoke it. I hear there's more in the bill as a step to taking away judicial power. I also read The byrd rules Stops them from touching Social Security For any reason. Not SSI, only SS
Byrd is kabuki theater. It provides for an automatic point of order against any provision not germane to the budget resolution. Once the Parliamentarian sustains the objection the full Senate can vote—by a simple majority—to overturn the ruling. This just happened with the California EV standards. Kabuki theater.
I believe there’s one additional relevant point—my understanding is that in previous administrations the OLC in DOJ had responsibility to review proposed executive orders for fidelity to the law. Under that regime I presume the birthright citizenship order, for example, would have been stopped in its tracks before being issued, not to mention the law firm orders. No such good-faith review is occurring in this administration, whose behavior is so far outside the normal bounds that it’s hard to even keep track of all the craziness.
One of the most frustrating things to watch is the media letting the Trump administration get away with framing many of these cases as unelected judges thwarting the will of an elected president. When in fact what the courts are doing is upholding statutes enacted by elected representatives -- Congress -- against an executive that wants to make its own law rather than being content to execute the ones we have.
The threats to federal judges and their families are a serious concern. But please don't do what some other bloggers have suggested: call or write CJ Roberts to tell him to speak out, and call or write the Federal Judicial Center to express concern. The CJ is keenly aware of the problem (since he heads the Judicial Conference where security is always discussed) and will say something if he believes it's appropriate given his role. As for the Federal Judicial Center, the FJC is an arm of the judicial branch concerned primarily with judicial education and training. It doesn't run the judiciary and has no role in judicial security -- apart from training for judges. Telling the judiciary that threats to judges are a problem is rather like calling your local fire department and telling the firefighters you think space heaters are a hazard. They know! The best thing people can do about threats to the judiciary is express concern to their Senators and Representatives.
Trump is the political equivalent of a FUD troll: "FUD" is short for "fear, uncertainty & doubt," and long before social media became so actively manipulated with AI-generated garbage & the like, this was the techie term for the far more innocuous version of what propagandists put out online, oftentimes in the form of "concerned citizen" posts both online & in letters to the editor. (Back when those were still common.)
To state the presumably obvious, the FUD trolling going on here is entirely by design, to scare immigrants (even ones in the country legally, but whom Trump is attempting to eject on likely arbitrary-and-capricious grounds). Unfortunately it's working.
A substantial part of Trump's ability to instill FUD is via the lack of conclusive legal rulings on pertinent subjects, e.g. one on the AEA's merits as applied. What I'm also wondering if this curious refusal to appeal rulings is merely a strategy to avoid having many/most cases – ones they know full well are unlikely to survive a full legal attack – "on the record," meaning fully litigated in court (and especially the Supreme Court).
"Ditto the Alien Enemies Act cases—in which the government hasn’t appealed injunctions entered by district courts in the District of Colorado; the Southern District of New York; the Western District of Pennsylvania; or the Southern and Western Districts of Texas."
Is it possible they're avoiding appeals only to avoid getting a full ruling of their AEA use on the merits? Even if not, we already know flood-the-zone is a go-to Trump strategy, and he's obviously flooding the SCOTUS zone with a blitzkrieg of EOs. And if this is, in fact, their strategy, what would be a potential workaround?
"...beyond the obvious logical defect in this narrative..." should read, "...beyond the obvious hypocritical defect in this narrative..." Hypocrisy, deliberate deceit, malfeasance, subversion ... Yep. Let's call it what it is.
And thanks for saying all of this out loud, by the way -- and just before the referenced Senate hearing.
Also -- a few weeks back, I needed help with your "Calvinball" reference. I needed no such help with today's Johnny Vander Meer mention. So I feel better.
"That is why it’s important for those who are going to criticize the behavior of district courts over the last 4.5 months not only to do so in good faith, but to bring receipts when they do."
Quit assuming that the MAGAs are acting in good faith when they criticize the courts. Their goal is a dictatorship. While Congress is afraid to object to Trump assuming its power, that leaves the courts as the main obstacle to dictatorship, so they must be de-legitimized. The right wing propaganda machine doesn't care about the truth, only about the result of taking power from the courts and giving it to Trump.
"To play up how much Trump has done in one conversation and complain about how busy federal courts have been in another is to assume folks lack basic logical reasoning skills."
Would you please consider making your posts available with the AI reader option? I'm not sure what would need to be done on your end, but it would be appreciated.
I know the topic du jour is the slow death of separation of powers, but I'd like to return for a minute to another recent death alluded to above. Perhaps someone can explain to me what Loper means after Eagle County. In Eagle County, the Court says:
As a general matter, when an agency interprets a statute,
judicial review of the agency’s interpretation is de novo.
See Loper Bright Enterprises v. Raimondo, 603 U. S. 369,
391–392 (2024). But when an agency exercises discretion
granted by a statute, judicial review is typically conducted
under the Administrative Procedure Act’s deferential
arbitrary-and-capricious standard. Under that standard, a
court asks not whether it agrees with the agency decision,
but rather only whether the agency action was reasonable
and reasonably explained.
(forgive the formatting)
Gosh that sounds a lot like the recently interred Chevron step 2. Not my field of expertise but it leaves me wondering where we are on agency power.
To clarify: what the Court overturned in Loper was the power of agencies to enforce or make decisions relative to _disputed_ areas of the law, as always in a given area where Congress has explicitly opted not to act on its own. It didn't somehow unilaterally defang every federal agency's power in the blink of an eye: the APA is still in effect, and its _undisputed_ rules remain in effect. What Loper changed was the _requirement_ that courts defer to agency rulemaking; it didn't say agencies can't make rules, period, or that they can't be enforced.
To frame it somewhat differently, you answered your own question (via cite, but still): "[W]hen an agency exercises discretion granted by a statute, judicial review is typically conducted under the Administrative Procedure Act’s deferential arbitrary-and-capricious standard." I'm certain Prof. Vladeck is keeping far closer track of the lawsuits against the Trump administration, but I suspect many lawyers could've told you even before Trump 2.0 started that you'd be hearing the term "arbitrary & capricious" a lot for the next four years.
But the judges in each case have been broadly correct: it IS arbitrary & capricious to deport people without due process & on the basis of inaccurate tattoo readings; fire hundreds of thousands of federal workers in defiance of statutory law; or cut billions in funding to institutions like Harvard on the basis of claimed, but vague / wholly unproven, allegations of "antisemitism."
Agencies *using* their delegated powers remain free to do so.
I suppose I remain either blind or unconvinced that there isn't some lurking ambiguity in the current state of affairs, made less certain by Eagle County.
I understand Loper to say that the APA embodies no "deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policy-making and factfinding." Even when the statute "delegates
discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject [only] to constitutional limits."
Now, Eagle County comes along and says that "when an agency exercises discretion granted by a statute, . . . a court asks not whether it agrees with the agency decision, but rather only whether the agency action was reasonable and reasonably explained."
It been 40 years since I took Admin, and my practice only wandered into the deep end of admin pool episodically. And not always to a joyous outcome. So I am a willing student. But it seems to me Loper and Eagle County are gazing quizzically at one another and wondering "where from here?"
"The notion that district judges shouldn’t thwart the will of democratic majorities is antithetical to why the Constitution guarantees the independence of the federal courts in the first place—to stand up against tyrannies of the majority, not roll over to them. This isn’t exactly a controversial."
Not only to stand up against the tyranny of popular majorities, but also to test the policies of who are elected by a majority against the bedrock principles in the constitution, the Bill of Rights and federal law. Just because you won an election with a popular majority, even if it's a landslide, it does not mean that you get to override the basic principles that were given with the consent of the governed.
I imagine brown v board of education was the harder and more unpopular decision at the time compáred to its overturned precedent.
I’m still in favor of limited tenure for Supreme Court justices but you are right that there needs to be some insulation from democratic temperament.
I agree with term limits but would go further in my crazy world. I’d allow 4 GOP and 4 Dem SCOTUS plus One. That one would have to be put in place with an 80% majority vote.
There is something that nobody is talking about that is bothering me immensely. It's the Judicial power grab in the big beautiful bill. If they pass that bill this whole article will be moot, just like the legislative branch already is and the judicial branch will be.
I'm guessing no one's talking about it because it has no realistic chance of becoming a reality. Even assuming Trump's "Big Beautiful Bill" passes in the first place, any proviso extending either the executive of legislative branch's power of the courts beyond what's already allowed isn't happening, or at least not "happening" in the context of prevailing on appeal. (Yes, a court could opt to nullify that one portion of the bill, if passed.)
No, we are nowhere near "the end of democracy," or the Trump administration assuming unilateral control of government. That's part of Prof. Vladeck's point: Trump may be attempting to ignore the rulings against him, but they're still exactly that – ruling AGAINST him. Not appealing the cases means the district judges in those cases can push for standard-issue sanctions for contempt if they see fit.
Trump may be trying to "forget" about people like Abrego Garcia. We have not, and cannot.
I was just reading about the byrd rules. If a senator invokes it, the way I understand it, everything in the bill that doesn't have to do with the word fiscal can be removed, especially the Judiciary crap
I stand corrected. But if the parliamentarian recommends sustaining the objection the presiding officer or veep can overrule and that takes 60 votes to override.
I believe that is correct. It can be overruled, but it takes a vote
I still don’t understand why Byrd rules aren’t applying in the senate or its House equivalent.
If I understand the byrd rules correctly, it's going to take, more than likely, a Democratic senator to invoke the rule. It seems only the Senate(& it only takes one) can invoke it. I hear there's more in the bill as a step to taking away judicial power. I also read The byrd rules Stops them from touching Social Security For any reason. Not SSI, only SS
Byrd is kabuki theater. It provides for an automatic point of order against any provision not germane to the budget resolution. Once the Parliamentarian sustains the objection the full Senate can vote—by a simple majority—to overturn the ruling. This just happened with the California EV standards. Kabuki theater.
That is incorrect. It takes 3/5 of the senate to override. https://www.congress.gov/crs-product/RL30862
I'm regularly impressed with S. Vladeck's ability to produce so much great, substantive analysis with such frequency.
I believe there’s one additional relevant point—my understanding is that in previous administrations the OLC in DOJ had responsibility to review proposed executive orders for fidelity to the law. Under that regime I presume the birthright citizenship order, for example, would have been stopped in its tracks before being issued, not to mention the law firm orders. No such good-faith review is occurring in this administration, whose behavior is so far outside the normal bounds that it’s hard to even keep track of all the craziness.
Thank you as always for this work.
One of the most frustrating things to watch is the media letting the Trump administration get away with framing many of these cases as unelected judges thwarting the will of an elected president. When in fact what the courts are doing is upholding statutes enacted by elected representatives -- Congress -- against an executive that wants to make its own law rather than being content to execute the ones we have.
Yes. The part that the maggots want to completely leave out is that judges are simply upholding the laws as written by the elected Congress.
The threats to federal judges and their families are a serious concern. But please don't do what some other bloggers have suggested: call or write CJ Roberts to tell him to speak out, and call or write the Federal Judicial Center to express concern. The CJ is keenly aware of the problem (since he heads the Judicial Conference where security is always discussed) and will say something if he believes it's appropriate given his role. As for the Federal Judicial Center, the FJC is an arm of the judicial branch concerned primarily with judicial education and training. It doesn't run the judiciary and has no role in judicial security -- apart from training for judges. Telling the judiciary that threats to judges are a problem is rather like calling your local fire department and telling the firefighters you think space heaters are a hazard. They know! The best thing people can do about threats to the judiciary is express concern to their Senators and Representatives.
"The apex of irresponsibility" is a good, if too kind, definition of the entire Trump administration and congressional Republicans.
Trump is the political equivalent of a FUD troll: "FUD" is short for "fear, uncertainty & doubt," and long before social media became so actively manipulated with AI-generated garbage & the like, this was the techie term for the far more innocuous version of what propagandists put out online, oftentimes in the form of "concerned citizen" posts both online & in letters to the editor. (Back when those were still common.)
To state the presumably obvious, the FUD trolling going on here is entirely by design, to scare immigrants (even ones in the country legally, but whom Trump is attempting to eject on likely arbitrary-and-capricious grounds). Unfortunately it's working.
A substantial part of Trump's ability to instill FUD is via the lack of conclusive legal rulings on pertinent subjects, e.g. one on the AEA's merits as applied. What I'm also wondering if this curious refusal to appeal rulings is merely a strategy to avoid having many/most cases – ones they know full well are unlikely to survive a full legal attack – "on the record," meaning fully litigated in court (and especially the Supreme Court).
"Ditto the Alien Enemies Act cases—in which the government hasn’t appealed injunctions entered by district courts in the District of Colorado; the Southern District of New York; the Western District of Pennsylvania; or the Southern and Western Districts of Texas."
Is it possible they're avoiding appeals only to avoid getting a full ruling of their AEA use on the merits? Even if not, we already know flood-the-zone is a go-to Trump strategy, and he's obviously flooding the SCOTUS zone with a blitzkrieg of EOs. And if this is, in fact, their strategy, what would be a potential workaround?
"...beyond the obvious logical defect in this narrative..." should read, "...beyond the obvious hypocritical defect in this narrative..." Hypocrisy, deliberate deceit, malfeasance, subversion ... Yep. Let's call it what it is.
Good stuff, as always.
And thanks for saying all of this out loud, by the way -- and just before the referenced Senate hearing.
Also -- a few weeks back, I needed help with your "Calvinball" reference. I needed no such help with today's Johnny Vander Meer mention. So I feel better.
Enjoyed the trivia, especially the odds of such a thing happening twice.
"That is why it’s important for those who are going to criticize the behavior of district courts over the last 4.5 months not only to do so in good faith, but to bring receipts when they do."
Quit assuming that the MAGAs are acting in good faith when they criticize the courts. Their goal is a dictatorship. While Congress is afraid to object to Trump assuming its power, that leaves the courts as the main obstacle to dictatorship, so they must be de-legitimized. The right wing propaganda machine doesn't care about the truth, only about the result of taking power from the courts and giving it to Trump.
"To play up how much Trump has done in one conversation and complain about how busy federal courts have been in another is to assume folks lack basic logical reasoning skills."
Doesn't the entire GOP depend on this???
Would you please consider making your posts available with the AI reader option? I'm not sure what would need to be done on your end, but it would be appreciated.
I know the topic du jour is the slow death of separation of powers, but I'd like to return for a minute to another recent death alluded to above. Perhaps someone can explain to me what Loper means after Eagle County. In Eagle County, the Court says:
As a general matter, when an agency interprets a statute,
judicial review of the agency’s interpretation is de novo.
See Loper Bright Enterprises v. Raimondo, 603 U. S. 369,
391–392 (2024). But when an agency exercises discretion
granted by a statute, judicial review is typically conducted
under the Administrative Procedure Act’s deferential
arbitrary-and-capricious standard. Under that standard, a
court asks not whether it agrees with the agency decision,
but rather only whether the agency action was reasonable
and reasonably explained.
(forgive the formatting)
Gosh that sounds a lot like the recently interred Chevron step 2. Not my field of expertise but it leaves me wondering where we are on agency power.
To clarify: what the Court overturned in Loper was the power of agencies to enforce or make decisions relative to _disputed_ areas of the law, as always in a given area where Congress has explicitly opted not to act on its own. It didn't somehow unilaterally defang every federal agency's power in the blink of an eye: the APA is still in effect, and its _undisputed_ rules remain in effect. What Loper changed was the _requirement_ that courts defer to agency rulemaking; it didn't say agencies can't make rules, period, or that they can't be enforced.
To frame it somewhat differently, you answered your own question (via cite, but still): "[W]hen an agency exercises discretion granted by a statute, judicial review is typically conducted under the Administrative Procedure Act’s deferential arbitrary-and-capricious standard." I'm certain Prof. Vladeck is keeping far closer track of the lawsuits against the Trump administration, but I suspect many lawyers could've told you even before Trump 2.0 started that you'd be hearing the term "arbitrary & capricious" a lot for the next four years.
But the judges in each case have been broadly correct: it IS arbitrary & capricious to deport people without due process & on the basis of inaccurate tattoo readings; fire hundreds of thousands of federal workers in defiance of statutory law; or cut billions in funding to institutions like Harvard on the basis of claimed, but vague / wholly unproven, allegations of "antisemitism."
Agencies *using* their delegated powers remain free to do so.
Jeff. thanks for your thoughtful response.
I suppose I remain either blind or unconvinced that there isn't some lurking ambiguity in the current state of affairs, made less certain by Eagle County.
I understand Loper to say that the APA embodies no "deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policy-making and factfinding." Even when the statute "delegates
discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject [only] to constitutional limits."
Now, Eagle County comes along and says that "when an agency exercises discretion granted by a statute, . . . a court asks not whether it agrees with the agency decision, but rather only whether the agency action was reasonable and reasonably explained."
It been 40 years since I took Admin, and my practice only wandered into the deep end of admin pool episodically. And not always to a joyous outcome. So I am a willing student. But it seems to me Loper and Eagle County are gazing quizzically at one another and wondering "where from here?"