Trump vs. the last democratic guardrail: the courts
Alexander Panetta | CBC News | Posted: February 13, 2025 9:00 AM | Last Updated: February 13
After tearing through other checks, the U.S. president is bumping into the judiciary
In a corroding American democracy, there's one guardrail still standing. The court system. President Donald Trump is testing it, he's pushing it, but so far has not kicked it aside.
Time and again, he has run into court orders — rulings that have restrained him, constrained him, and told him no, you can't always get what you want.
Trump has so far stopped short of crossing the democratic Rubicon of blatantly defying a court order, a line no U.S. president has breached in at least a century and a half.
"In the early going here, the courts have been our saviour," said Harold Hongju Koh, former dean at Yale Law School, a constitutional law professor, and legal adviser to the State Department during the Obama presidency.
And yet: "We're in a state of breakdown of constitutional democracy."
Trump has unleashed a barrage of actions his critics call unconstitutional or unlawful, at a speed and scale unseen in recent history.
As a result, dozens of lawsuits are flying in every direction. And the president has suffered more than a dozen legal setbacks in recent days.
The courts have paused, at least temporarily, his tightening of access to U.S. citizenship, refusal to spend funds approved by Congress, firing aid workers en masse, deleting public-health websites, and giving Americans' banking data to Elon Musk.
Trump's response? He'll fight back the democratically conventional way — by appealing. He's complaining about the judges, calling their actions overreach, but he hasn't crossed that final frontier.
"I always abide by the courts," Trump told reporters in the Oval Office on Tuesday, seated beside Musk, his billionaire aide. "I'll have to appeal."
The well-heeled consigliere has proposed going one step farther. In an online post, Musk suggested impeaching judges who defy the "will of the people."
Others are girding for battle.
On the right-wing Newsmax network, a host asked whether it was time to ignore the courts and a conservative lawyer, in reply, proposed alternatives to outright defiance — impeachments, congressional investigations and even a funding freeze so judges can't pay clerks.
Other guardrails tumble, one after another
The reason so many eyes are glued to Trump's reactions is that other ramparts of the American republic are crumbling.
Elections? Trump declares them rigged if he loses. After allies tried helping him steal one, he erased the consequences — pardoning more than 1,500 people who attacked the U.S. Capitol on Jan. 6, 2021.
Good luck with penalizing political crimes. Between such ever-increasing brazenness of pardons, combined with a recent Supreme Court decision, allies of the president don't quite have a get-out-of-jail free card, but it's close.
Impeachment? It's a toothless tiger. After four presidential impeachments in history, it's now nearly impossible to imagine an act that would realistically muster a two-thirds Senate majority for removal from office.
Independent watchdogs? Fired, by Trump, without following the legal process. One agency inspector-general warned that Trump's foreign-aid freeze will cause deaths and stockpiles of wasted food. He's fired too, now.
WATCH | Court blocks Musk's efforts:
Police? He's dismissed two FBI directors and one IRS commissioner, who otherwise have lengthy terms to help prevent partisan political pressure.
Congress? On Day 1, Trump announced he simply would not apply, for 75 days, the law that requires the sale or shutdown of the Chinese-owned app TikTok. Congress didn't blink. Republicans had just helped pass that law. They let Trump ignore it.
He's also accused of breaking other laws with a spending halt, the hasty dismantling of the U.S. foreign-aid agency, not following proper procedures for firing non-partisan civil servants, and setting new rules for who gets to be a U.S. citizen.
The media? They're being squeezed with costly lawsuits, including nuisance suits, being pressed to settle, and seeing access cut off.
The Associated Press was told it must start clearly referring to the Gulf of Mexico as the Gulf of America, or be forbidden from Oval Office events.
"We have never seen in U.S. history a comparable, programmatic indifference to, or hostility to, the legal constraints that would ordinarily apply to the presidency," said Peter Shane, a scholar in constitutional law at New York University who focuses on the powers of the presidency.
"Watergate was narrower than this."
Why Washington's watching the courts
That leaves the courts. This is where a number of these fights are now being fought and, so far, Trump's plans are getting bruised.
No president has blatantly defied a court order since the Civil War, although some legal scholars argue it's been even longer.
Presidents often grumble about court rulings. They often seek loopholes and workarounds, as Joe Biden did with student loans. The Supreme Court blocked his tuition debt forgiveness plan, so he redesigned it using a different program.
But comments the other day sent a chill through Washington. Vice-President J.D. Vance, a graduate of Yale Law School, suggested recent court rulings were illegitimate.
What made his social-media post especially striking wasn't just his legal background. It's that he talked about this years ago, meaning it wasn't just some hastily considered tweet.
Back in 2021, Vance said he would urge Trump to purge the civil service and replace it with his supporters. If the courts deemed that illegal, Vance said, Trump should tell the courts to get stuffed, as Andrew Jackson did 190-plus years ago.
Again, Trump has not gone this far. He insists he wants to challenge his court defeats through the legal system.
And to be clear, this is exactly what Trump said two years ago.
In his campaign platform, Trump said specifically that he would challenge the constitutionality of the 1974 law that forces presidents to spend the dollars Congress approves, as well as birthright citizenship and other things he's now attempting.
In one sign of contrition before the courts, administration lawyers even admitted to making errors in an earlier filing — and apologized to the judge.
Trevor Morrison says the the overall situation is concerning; unprecedented, even, in how aggressively and frequently Trump is taking actions many view as outside constitutional boundaries.
But is it a constitutional crisis as some have suggested? We're not quite there yet, says Morrison, the Canadian-born dean emeritus at New York University's school of law, also a constitutional lawyer, and counsel in the Obama White House.
"I'm not sure that I have a completely worked-out definition of 'constitutional crisis,' and therefore I'm not sure if I would say that we're quite yet in one. Because we don't yet have, I think, committed open defiance of a court order," he said.
"But, you know, on a number of fronts, and a number of areas of litigation, we are very, very close."
The what-if scenario
There are hints of defiance from the Trump administration.
Laid-off employees at USAID have alleged, in a lawsuit, that Trump has defied court orders. Some administration officials are being accused of failing to comply with other court orders.
In another case, a judge agreed there's been non-compliance by the White House in the suit involving the freeze on federal funding. That judge even warned that continued defiance could be criminal contempt, and quoted from a 1975 Supreme Court decision on the need to promptly follow court orders.
And if not? Then we'd be entering the next phase, on the other side of the Rubicon; that constitutional no-man's-land.
At that point the courts could issue orders — maybe contempt decisions. The U.S. Marshals Service would be asked to enforce the orders. But that service sits inside Trump's Department of Justice.
Would the president order marshals to defy their legal duty to enforce a court order? "I don't think we're anywhere near that," Morrison said. He hopes "de-escalation" would come first.