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Tests of Trump's power on fast tracks to the Supreme Court

12 February 2025 at 02:00
Data: Just Security; Chart: Kavya Beheraj/Axios

Every one of President Trump's most sweeping executive orders is now being challenged in court by multiple lawsuits.

Why it matters: They're setting the stage for historic Supreme Court showdowns that could test Trump's push to remake the federal government โ€” and increase his power.


  • They also could provide roadmaps for how to stop him.

The big picture: Less than four weeks into Trump's term, the Justice Department is already defending signature parts of his agenda in more than 50 lawsuits.

  • Judges have temporarily stopped several of his top priorities from taking effect โ€” at least for now.
  • But in many cases the White House is purposely pushing its legal limits, inviting this tsunami of legal challenges โ€” signaling the administration's confidence that the conservative-led Supreme Court will back Trump when the time comes.

State of play: Three big pieces of Trump's agenda โ€” immigration, trans rights and slashing the federal bureaucracy โ€” seem particularly likely to make it to the high court, which last summer granted presidents broad immunity for "official acts" they carry out.

Immigration

Three federal judges โ€” in New Hampshire, Maryland and Washington state โ€” have ordered a freeze on Trump's Day 1 executive order to end birthright citizenship, including one who called it "blatantly unconstitutional."

  • At least 22 states and other organizations have sued over Trump's order.
  • Legal analysts mostly agree that Trump is likely to lose this one in the end.

With so many active cases on the matter, it's too soon to say which lawsuit is most likely to land on the Supreme Court's docket. But because it's such a sweeping policy โ€” and because birthright citizenship is a constitutional question โ€” the issue will be ripe for the court's review.

The federal workforce

Trump's effort to slash federal programs and the federal workforce has run into some snags in court, but it's an area on which legal experts believe he's likely to have the Supreme Court on his side.

  • Some of the myriad challenges to Trump's various cuts are very specific, and will only pertain to certain employees or programs.
  • But others raise bigger questions about the president's authority to fire federal workers. The Supreme Court already has taken an expansive view of that power.

Where it stands: Judges have temporarily blocked Trump's "buyout" deadline for federal workers and his decision to put thousands of employees at the U.S. Agency for International Development (USAID) on leave.

  • As long as the administration keeps cutting workers one tranche at a time, there will be virtually no end to lawsuits challenging the moves.

What we're watching: When a case focuses on the details of how the White House carried out a spending cut, Trump could take some losses โ€” at least temporary ones, analysts said.

  • But the more the Justice Department can turn this universe of litigation into a big-picture referendum on the president's power over the federal workforce, the more likely it is to win โ€” and win big.

Transgender rights

The Supreme Court seems likely to rule later this year that states can ban gender-affirming care for minors โ€” a potential signal that Trump's moves to roll back federal protections for trans people probably will fare well.

  • But they'll be some of the highest-profile suits the Justice Department will have to defend.

Where it stands: A federal judge temporarily blocked Trump's order that would transfer incarcerated transgender women to men's prison facilities, and would block them from receiving medical treatments for gender transitions.

  • Trump also signed executive orders saying the U.S. government would recognize only two sexes, male and female, and ban transgender people from serving in the military.
  • Lawsuits have been filed against both orders, but no judge has issued a ruling.

Between the lines: As congressional Democrats try to mount their resistance against Trump administration actions, they're likely to begin filing amicus briefs to support challenges.

  • "We will be involved in all of them, and we're of course doing everything we can to speak up and to give heart and courage to the judges who are doing it," Rep. Jamie Raskin (D-Md.) the ranking member on the House Judiciary Committee, told reporters last week.

What to watch: As the courts become a battlefield for challenges to many of Trump's orders, some of the president's most vocal allies are questioning whether judges have authority of judges over many of the president's actions.

  • Vice President Vance said Sunday that "judges aren't allowed to control the executive's legitimate power."
  • Vance's comment, which has been echoed by Elon Musk and other Republicans, foreshadow what's likely to be a tense battle in courtrooms nationwide over Trump's norm-breaking changes to government.

Go deeper: Court rulings test limits of Trump's power

Court rulings test limits of Trump's power

By: Sam Baker
6 February 2025 at 14:07

A federal judge on Thursday paused the Trump administration's "buyout" offer for federal employees hours before it was set to expire.

  • Multiple judges have now ordered freezes on President Trump's plan to end birthright citizenship.
  • Lawsuits involving Elon Musk's takeover of federal agencies are just getting started, but they're already resulting in some limits on the DOGE team.

The big picture: The courts are one of the only real threats to slow or stop substantial parts of Trump's agenda โ€” and they're doing it.


Driving the news: Roughly 40,000 federal workers have accepted President Trump's deferred resignation offer ahead of a midnight deadline.

  • But a judge in Boston blocked the federal government from executing the plan at least until Monday, when he hears arguments over whether the buyout program is legal.
  • The specific terms of the arrangement have always been somewhat murky. Education Department staffers were told today that if they took the deal, it could be canceled at any time and workers would have no recourse, NBC News reported.

Earlier Thursday, the Treasury Department reportedly agreed to limit DOGE workers' access to certain sensitive systems, in response to a lawsuit alleging privacy violations.

  • Meanwhile the second federal judge in two days blocked Trump's order on birthright citizenship, which the judge previously called "blatantly unconstitutional."

What we're watching: None of these are final rulings on the merits of any of the Trump administration's actions. Trump may ultimately prevail in many of these legal battles.

  • But lawsuits and preliminary court rulings are already weakening or holding up some of Trump's top early priorities.

Go deeper: Trump vs. the courts

Trump vs. the courts: Two early fights set stage for many more to come

By: Sam Baker
30 January 2025 at 01:45

President Trump is pushing legal boundaries by design โ€” testing the limits of his own power and the willingness of a conservative high court to enhance it.

Why it matters: Trump's shock-and-awe agenda is setting in motion multiple future Supreme Court showdowns. These legal challenges threaten to scuttle some of his priorities and delay parts of his swift, decisive show of force.


State of play: The White House yesterday rescinded a freeze on trillions of dollars in federal grants โ€” two days after it was issued, and one day after a judge temporarily prevented it from taking effect.

  • The freeze had sparked enormous on-the-ground confusion, and reignited a long-simmering legal debate about whether presidents have the power to refuse to spend money that Congress has appropriated.
  • That's a serious constitutional question only the Supreme Court can ultimately answer.

Between the lines: The spending freeze was on a fast track to the high court the moment it was signed. The White House backed down this time, but it's prepared โ€” and in many cases, eager โ€” to fight many of these fights all the way to the end.

Trump's efforts to end birthright citizenship through an executive order have also been blocked in court.

  • "This is a blatantly unconstitutional order," said U.S. District Judge John Coughenour of Seattle, who put a temporary stay on Trump's plans.
  • Multiple suits over the citizenship order have been filed in multiple jurisdictions. So there'll be more rulings on the issue as it works its way toward the Supreme Court.

Legal experts largely think the Justice Department will have a hard time constructing a case against birthright citizenship.

  • The 14th Amendment says, in part, that "all persons born or naturalized in the United States โ€ฆ are citizens of the United States." That has long been read as establishing birthright citizenship.

But in other areas, the Trump administration will be on much friendlier terrain.

  • Inspectors general fired by Trump last week have argued their dismissals were illegal, citing federal oversight laws.
  • But taking those claims to court could backfire. The Supreme Court's conservative majority generally takes an expansive view of presidential power, including the power to fire senior executive branch officials.

Zoom in: Unions representing government workers have filed multiple suits challenging Schedule F โ€” the executive order that strips civil-service protections from scores of federal employees, making it easier for Trump (or any president) to fire them.

  • Trump's efforts to slash the bureaucracy depend heavily on Schedule F โ€” which means they'll depend on the outcome of those cases.

What to watch: Liberal advocacy organizations have sued over Trump's surprise decision to give DOGE, initially conceived as an outside advisory group, a home inside the government. That can't happen without congressional approval, they argue.

  • There's also a suit pending over Trump's order on transgender inmates. More civil-rights cases are sure to arise as the White House and federal agencies further roll back diversity programs and protections for LGBTQ people.
  • Some Trump spending cuts could also end up in court.

The bottom line: Almost everything of any significance the Trump administration does, or attempts to do, will end up in court. In less than two weeks, it has already touched off two fights that would likely put enormous constitutional questions before the Supreme Court.

  • There will be many, many more.

Supreme Court upholds TikTok ban

By: Sam Baker
17 January 2025 at 07:17

The Supreme Court on Friday upheld a law that could ban TikTok in the U.S.

The big picture: The court unanimously rejected TikTok's claims that the law violates the First Amendment.


  • The wildly popular app was on course to disappear for U.S. users as soon as Sunday, but President-elect Trump has said he would delay enforcement of that ban. TikTok's long-term future is still unclear.

Driving the news: The bipartisan law President Biden signed in April requires ByteDance, TikTok's Chinese parent company, to either sell TikTok or shutter it inside the U.S. on Jan. 19.

  • The justices said that because the primary responsibility falls on a foreign company, and because all of the speech that's currently on TikTok could still be there under new ownership, the First Amendment does not apply.

What's next: Trump had asked the court not to let the ban take effect as scheduled, one day before his inauguration.

  • Finding a way to keep TikTok alive may not seem like an emergency, but the app's sheer popularity will make it a top concern in the early days of Trump's new term.
  • Only a few potential buyers could put together enough money to even make a serious offer for the dominant social-media platform. Bloomberg reported that the Chinese government was considering selling TikTok to Elon Musk, though ByteDance flatly denied that.
  • But all sale discussions are in their early stages โ€” in the months since the law took effect, ByteDance and TikTok have been more focused on avoiding the Jan. 19 deadline than finding a way to comply with it.

Tech CEOs flock to Trump's inauguration

By: Sam Baker
17 January 2025 at 02:30
Chart: Axios Visuals

Just about all the biggest names in tech will be in Washington on Monday for President-elect Trump's inauguration โ€” a much different scene than the beginning of his first term.

Where it stands: TikTok CEO Shou Zi Chew is the latest addition to the Big Tech guest list for Trump's swearing-in.


  • Alphabet CEO Sundar Pichai, Amazon founder Jeff Bezos, Apple CEO Tim Cook, Meta CEO Mark Zuckerberg and OpenAI CEO Sam Altman are also planning to attend, according to media reports.
  • Elon Musk will be there, too.

Most of those CEOs, or their companies, also donated money for Trump's inauguration. And Zuckerberg is co-hosting a black-tie reception Monday evening, according to The New York Times.

Supreme Court seems likely to uphold TikTok ban

By: Sam Baker
10 January 2025 at 10:00

The Supreme Court seemed inclined Friday to uphold a law that would ban TikTok in the U.S.

Why it matters: One of the most popular social media apps in the country may disappear next week.


State of play: The court heard oral arguments Friday over the new law that requires TikTok's parent company, ByteDance, to either sell TikTok or shut it down in the U.S by Jan. 19. The law passed last year with broad bipartisan support and was signed by President Biden.

  • TikTok and a group of its users challenged the law, saying it violates their First Amendment rights.
  • Congress said the law was necessary because ByteDance is controlled by the Chinese government, and that its ability to harvest vast amounts of personal information from American users is therefore a national security threat.

Zoom in: Most of the justices homed in Friday on one central point: The law would allow TikTok to keep operating if it used an algorithm other than ByteDance's. And ByteDance, as a Chinese company, doesn't have First Amendment rights.

  • "The law doesn't say TikTok has to shut down. It says ByteDance has to divest," Justice Amy Coney Barrett said.
  • "The law is only targeted at this foreign corporation that doesn't have First Amendment rights. Whatever effect it has, it has," Justice Elena Kagan said.
  • "Congress doesn't care what's on TikTok," Chief Justice John Roberts said. "Congress is fine with the expression."
  • "It doesn't' say, 'TikTok, you can't speak,'" Justice Ketanji Brown Jackson said.

All of those statements came during the justices' tough questioning of Noel Francisco, the lawyer representing TikTok.

  • Solicitor General Elizabeth Prelogar, defending the law on behalf of the federal government, also faced tough questions.
  • Several justices seemed wary about one of the law's stated justifications โ€” that the Chinese government could manipulate which content TikTok users see. That rationale does seem to have some First Amendment implications, they suggested.
  • Some justices also questioned whether there might be a less restrictive way to make sure Americans know about China's potential influence over TikTok.

What's next: The court will likely rule quickly โ€” given the looming Jan. 19 deadline.

Supreme Court's TikTok dance: Justices to weigh in on ban, with Trump opposed

By: Sam Baker
9 January 2025 at 01:32

President-elect Trump's highly unusual intervention in the Supreme Court's TikTok case reads almost like a guy asking for a favor from an institution that still runs on formality.

The big picture: Trump's last-minute effort to give TikTok a stay of execution is one more twist in a case that already scrambles every ideological dividing line.


Driving the news: The court is set to hear oral arguments Friday over TikTok's future. A new, overwhelmingly bipartisan law requires the app's Chinese parent company, ByteDance, to either sell TikTok by Jan. 19 or shut it down within the U.S.

  • There's no simple partisan division on this one. Republicans in Congress supported the law, which President Biden signed, and GOP attorneys general have weighed in to help Biden defend the law in court.
  • Trump previously advocated for a ban, then flip-flopped. He filed an amicus brief on Dec. 27 urging the court to pause the law.
  • The actual parties in the TikTok case largely ignored Trump's filing, which is mostly about Trump, not the law.
  • Whether the justices give it more credence could say a lot about the overall direction of a conservative court that has handed Trump some enormous victories.

What they're saying: ByteDance and a group of TikTok users argue that the law violates the First Amendment, because it would shutter one of the country's most popular platforms for personal expression.

  • The Biden administration says the ban is rooted in national security concerns, and doesn't target any specific speech on TikTok. A new owner could still allow all the same content, it argues, so there's no First Amendment issue.

Between the lines: The conservative Supreme Court usually (but not always) sides with people making First Amendment claims. And it usually (but not always) sides with the federal government when the government says there's a national-security issue.

  • In this case, it won't be able to do both.

And then there's Trump. He has asked the justices not to let the law go into effect as scheduled on Jan. 19 โ€” but his argument is not rooted in any of the First Amendment or national-security concerns at issue in the case. It takes no position on those issues.

  • "President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government," his brief says.
  • The argument is essentially that the court should ignore the deadline Congress and the president decided on, and defer instead to Trump's force of personality.
  • "President Trump is one of the most powerful, prolific, and influential users of social media in history. Consistent with his commanding presence in this area, President Trump currently has 14.7 million followers on TikTok," his brief says, arguing that he is uniquely well positioned to solve a social-media problem.

That may be a stretch, even for a court that has sided with Trump on any number of high-stakes issues.

  • He is, for now, still just an ordinary citizen with no formal role in this dispute, and there is a statutory deadline that was intentionally set before the next president would be sworn in.
  • But it's also a hard case, legally and politically, and any avenue that lets the justices avoid striking down a bipartisan law or banning a wildly popular app might have some appeal.

Supreme Court seems likely to uphold ban on gender-affirming care

By: Sam Baker
4 December 2024 at 09:42

The Supreme Court seemed inclined Wednesday to uphold laws that ban gender-affirming care for transgender youth.

The big picture: Medical authorities in the U.S. largely agree that treatments like puberty blockers and hormone therapy are safe, but the court's conservative justices indicated they do not want to overrule state laws banning them for children.


Driving the news: The court heard oral arguments Wednesday over a Tennessee law that bans gender-affirming care for minors. Roughly half the states have similar laws on the books.

  • The central question before the court is whether Tennessee is simply regulating the practice of medicine or discriminating on the basis of sex. If it's the latter, the state would have to clear a much higher legal bar to defend its law.

Three key conservative votes โ€” Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh โ€” all seemed to come down on Tennessee's side.

  • Kavanaugh cited medical disagreements and tight regulations in Europe, arguing that the science of gender-affirming care is unsettled and that the court should not "constitutional-ize" the issue.
  • "For us to come in and choose one side of that, knowing that either way people are going to be harmed โ€” there's no perfect way out," he said.
  • Two other conservative justices, Clarence Thomas and Samuel Alito, are very unlikely to oppose the bans.

The intrigue: Just four years ago, the court ruled that firing trans workers because they are trans is a form of illegal sex discrimination. Advocates argued that the same logic should apply to health care.

  • Justice Neil Gorsuch, a Trump appointee, wrote the majority opinion in that case, joined by Roberts and the court's liberals.
  • Gorsuch did not ask any questions Wednesday, so there's no way to know whether he thinks the two cases are aligned.
  • Even if he is inclined to side with the families challenging Tennessee's law, he would need to bring along at least one other conservative justice to achieve a majority.

Yes, but: Oral arguments are an indication of how the justices are thinking about a case, not a surefire prediction of how they'll ultimately rule.

Supreme Court's big trans rights case could come down to Gorsuch

By: Sam Baker
4 December 2024 at 02:33

President-elect Trump vowed to limit access to gender-affirming care, especially for children. But judges he appointed may have laid the groundwork to save it.

The big picture: The first major post-election referendum on trans health care is happening Wednesday at the Supreme Court โ€” and the issue has transcended the court's usual ideological divisions before.


  • The Court is hearing arguments this morning over a Tennessee law that bans puberty blockers, hormone therapy and surgery for transgender minors.
  • The justices' decision will also affect the 20-plus states with similar laws on the books, and it'll inform how the courts handle future cases on trans rights.

What we're watching: Trans people won a surprising victory in 2020, when the court โ€” in a decision by Justice Neil Gorsuch, a Trump appointee โ€” ruled that employers cannot fire workers because they're trans.

  • The big question today is whether the logic of that decision should also apply to Tennessee's ban on gender-affirming care.

How it works: In the 2020 case, Gorsuch wrote that firing someone after a gender transition is discrimination on the basis of sex.

  • "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex," he wrote.
  • Chief Justice John Roberts joined that decision, along with the court's liberal members.
  • The families challenging Tennessee's law say the same thing is happening here โ€” that the state is singling people out based on their gender identity.
  • The first judge to hear the case โ€” also a Trump appointee โ€” agreed, ruling that the law is probably unconstitutional.

The other side: Tennessee argues that it's simply regulating medicine, based on patients' age and what the treatment is for, which falls well within states' power.

  • Both boys and girls can be denied these treatments, and both boys and girls can access them if it's for another use, the state says โ€” so the regulation doesn't draw a line based on sex.

Why it matters: If the Supreme Court decides that Tennessee law counts as sex-based discrimination, the state will have to clear a much higher bar to defend it.

  • If the justices say it's simply a medical regulation, it's much more likely to survive this legal challenge.

Between the lines: There are some key differences between the 2020 case and this one.

  • The earlier case hinged on a line in federal law that explicitly bans employment discrimination on the basis of sex.
  • Gorsuch cast his ruling as an exercise in textualism โ€” the statute prevents sex discrimination, and if you fire someone just because they changed their sex, that's sex discrimination.
  • The Tennessee case doesn't lend itself to the same kind of textual analysis, leaving plenty of room for the conservatives to carve out a new, more restrictive interpretation if they want to.

Even so, trans rights are 1-0 in major Supreme Court cases, and if there's a roadmap for another victory this time, it's one that Gorsuch drew up.

Go deeper: Trump win emboldens GOP's anti-trans blitz

How prosecuting Trump backfired

By: Sam Baker
26 November 2024 at 13:18

All the time and effort poured into prosecuting Donald Trump only ended up putting him โ€” and every future president โ€” further above the law.

The big picture: Efforts to prosecute Trump for his first-term conduct are officially on ice, and he's entering his second term with the knowledge that it'll be extraordinarily difficult for anyone to prosecute him for anything he does this time around.


Driving the news: Special counsel Jack Smith moved Monday to drop two cases against Trump, for subverting the results of the 2020 election and mishandling classified documents.

  • Sentencing for his conviction on 34 fraud-related charges in his New York hush money case was postponed indefinitely, and the case may be dismissed.
  • The election interference case in Georgia is technically still in limbo, but don't hold your breath.

By far the most significant outcome from all of those charges was the Supreme Court's ruling that former presidents are immune from prosecution for their "official acts."

  • Because the Justice Department won't continue trying to prosecute Trump while he's president, the courts won't fill in the details of what constitutes an "official act" until the next time a former president is indicted. That could be a while.
  • But the Supreme Court's initial definition was broad enough to give Trump, and the presidents who come after him, a whole lot of confidence that hardly anything they do while in office will land them in prison later.

What they're saying: The Justice Department should have moved faster to begin prosecuting Trump once President Biden took office, some Democrats and liberal legal experts argue.

  • Smith wasn't appointed until late 2022, and delivered his first indictment just over 6 months later.
  • If that process had moved faster, they say, Smith would have had time to keep litigating the definition of an "official act," and might have gotten some part of his Jan. 6 indictment to stick.

The bottom line: Trump was the first former president convicted of a felony. But after four trials and dozens of charges, he returns to office on firmer legal footing than ever.

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