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US district and appeals courts are increasingly rebuking Donald Trump’s radical moves on tackling crime, illegal immigration and other actions where administration lawyers or Trump have made sweeping claims of emergencies that judges have bluntly rejected as erroneous and undermining the rule of law in America.
Legal scholars and ex-judges note that strong court pushback has come from judges appointed by Republicans, including Trump himself, and Democrats, and signify that the administration’s factual claims and expanding executive powers face stiff challenges that have slowed some extreme policies.
Among the toughest rulings were ones this month by Judge Karin Immergut in Oregon and Judge April Perry in Chicago. Both district judges sharply challenged Trump’s plans to deploy national guard troops to deal with minimal violence that Trump had portrayed as akin to “war” zones, spurring the judges to impose temporary restraining orders.
Immergut, whom president Trump nominated for the court in his first term, rejected Trump’s depiction of Portland as “war-ravaged”, and in need of saving from “Antifa and other domestic terrorists” concluding that the “president’s determination was simply untethered to the facts”. But a court of appeals ruled on 20 October that Trump could send national guard troops to the city.
Elsewhere, district judge William Young in Boston issued a scathing 161-page ruling last month calling some of Trump’s deportation policies illegal efforts to deport non-citizen activists at colleges in violation of their first amendment rights “under the cover of an unconstitutionally broad definition of antisemitism”. Young was nominated by Ronald Reagan.
Some former appeals court judges say that the district courts and courts of appeals are responding appropriately to a pattern of unlawful conduct by Trump and his top deputies.
“The president and attorney general are openly contemptuous of the constitution and laws of the United States and of the federal courts, and the arguments they make to the courts mirror that personal contempt,” said retired court of appeals judge J Michael Luttig. “The federal district courts and the courts of appeals well understand that and they are going to have none of it.”
Recent court rulings reveal a pattern of strong judicial rebukes to the Trump administration from district and appeals courts on multiple issues since Trump took office again, which the legal news and analysis site Just Security has documented.
A Just Security study, which was spearheaded by NYU law professor Ryan Goodman, revealed that courts’ distrust of government information and representations hit over 40 cases as of 15 October versus 35 cases in mid-September. Similarly, it noted that courts’ findings of “arbitrary and capricious” administrative action totaled 58 cases on 15 October versus 52 in mid-September. The study showed courts’ concerns over noncompliance with judicial orders totaled over 20 cases as of 15 October up from 15 cases a month before.
But despite the growing number of strong lower court rulings against the administration, some may well get reversed by the supreme court given its 6-3 conservative majority, and its rulings that have markedly expanded presidential powers.
Nonetheless, legal scholars and ex-federal judges stress that recent district court rulings against Trump’s radical policies are grounded in fact and reveal profound scepticism about a number of the administration’s sweeping legal claims.
“US district judges have the responsibility to determine the relevant facts before applying the law. Accordingly, the credibility of a party and its counsel are immensely important,” said former federal judge John Jones, who is now president of Dickinson College.
“Simply put, the president’s reputation for hyperbole that lapses into outright lies precedes him in these cases, and judges are increasingly refusing to take the administration’s rationale for its actions at face value.”
For example, Perry called the Department of Homeland Security’s depiction of events in Chicago “simply unreliable” with a “lack of credibility”. She noted that state and local law enforcement contradicted the case for deploying the national guard and Trump’s assertion that it was a “war zone”, and warned that using the guard could fuel “civil unrest”.
Days later, the seventh circuit court of appeals upheld Perry’s ruling that denied a White House request to deploy national guard troops on Chicago streets in response to a lawsuit brought by the city of Chicago and Illinois.
But on Friday the Trump administration asked the supreme court to pause those rulings and permit Trump to deploy troops in Illinois, boosting efforts to send the national guard into the Chicago area.
Elsewhere, on Monday a three-judge appeals court panel ruled 2-1 that the Trump administration can send the national guard to Portland, lifting Immergut’s ruling and allowing some 200 federalized guard troops to be sent to the city to protect federal buildings.
Responding to the ruling, Oregon’s attorney general said if the decision is allowed to stand Trump would have “unilateral power to put Oregon soldiers on our streets with almost no justification”.
More broadly, scholars and other experts voice strong criticism of the administration’s legal claims.
“Trump is abusing the laws that authorize domestic military deployment in a crisis, and the courts are starting to push back,” said Liza Goitein, the Brennan Center’s senior director of liberty and national security.
“In the United States, federal armed forces cannot be used to execute the law except when civilian authorities have been completely overwhelmed. As judges in Oregon and Illinois have recognized, the facts on the ground simply don’t justify deployment of the military.
“A court could reach the opposite conclusion only by extending a dangerous level of deference to the president, effectively giving him free rein to use the military as a domestic police force. That would be contrary to American principles and traditions, and it would pose a grave threat to democracy and individual liberty.”
Not surprisingly, some recent rulings by district judges have outraged Maga world and top Trump officials, who have decried them in incendiary terms. The White House deputy chief of staff, Stephen Miller, called Immergut’s ruling “legal insurrection”, which some analysts worry could incite violence.
Trump, too, fired back at Immergut’s ruling. “I wasn’t served well by the people who pick judges,” Trump told reporters soon after the ruling, seemingly forgetting he had nominated her, and then misidentifying her sex. “Portland is burning to the ground … That judge ought to be ashamed of himself.”
Trump’s attacks on Immergut and earlier dust-ups with judges who ruled against the administration were advanced this month by El Salvador’s authoritarian leader Nayib Bukele, who urged the Trump administration to emulate his policies and impeach “corrupt judges”.
“If you don’t impeach the corrupt judges, you CANNOT fix the country,” Bukele tweeted, sparking multi-billionaire and Maga ally Elon Musk to retweet it as “essential”.
But legal experts say the ruling by Immergut and other district judges who have pushed back hard against administration policies are fully warranted and reasonable, given extreme moves by Trump on immigration, crime and other fronts they deem unjustified or illegal.
“I think the strong district court response in these contexts is striking,” said Columbia law professor Gillian Metzger. “It’s occurring in other Trump contexts as well – for example, the administration’s efforts to deny appropriated funding or target law firms – but immigration enforcement and calling out the national guard are traditional executive areas where you’d expect the president to get deference.”
Metzger said: “Judges are perceiving an administration that is asserting power in novel ways and at odds with basic norms and longstanding practices – eg, employing the national guard in a partisan fashion over the objections of state and local leaders, deploying Ice officers in aggressive ways, etc – and at times violating governing statutes.”
Other legal scholars go further.
“The problem is not rogue judges, but a rogue president. The problem is not what judges are doing but what the president is doing,” said former Massachusetts judge Nancy Gertner, who now teaches law at Harvard.
Gertner pointed in particular to Judge Young’s ruling in a deportation case involving efforts by the Department of State and the Department of Homeland Security to deport pro-Palestinian non-citizen students and professors who protested against Israel’s actions in Gaza.
In his ruling, Young wrote that Trump’s conduct violated his oath to “preserve, protect and defend the constitution of the United States” and the actions of his administration represented a “full-throated assault on the first amendment”.
Gertner noted that the “case involved sending people to countries without due process. We gave due process to people involved with the September 11 attacks. Sending people to countries where they had no relatives, NO TIES, was a flagrant violation of law.
“What the Trump administration has been doing is so unprecedented and so far from normal and so illegal it makes sense that judges have issued injunctions stopping them.”
Luttig stressed: “The judges of the United States will not be threatened and intimidated by this president and this attorney general. They will continue to honor their oaths to the constitution, which means the president and attorney general can expect loss after loss after loss, at least before the nation’s lower federal courts.”
