Contact The Editor
Articles By This Author
Republicans will make their case on Capitol Hill this week for reining in federal judges, amid an escalating clash between President Donald Trump and the courts that have blocked, at least temporarily, many of his key priorities.
Both the House and Senate will hold hearings on the federal judiciary, and House lawmakers are expected to vote on a bill to bar courts from issuing nationwide injunctions. The odds of the bill becoming law are long.
But the flurry of action shows how much the courts have become a threat to Trump's agenda and highlights questions about the judicial system that for years have frustrated whichever party occupies the White House.
Trump charged into his second term issuing more executive orders - 107 to date - than any president in four decades. The push, and his administration's aggressive efforts on a variety of other fronts, has been met with an even larger wave of about 150 lawsuits.
Judges have put more than 40 holds on Trump's agenda, according to a Washington Post analysis of data from digital legal journal Just Security and the nonprofit Fix the Court. Temporary restraining orders and preliminary injunctions have paused bids to fire thousands of probationary workers, block trillions in federal grants, loans and foreign aid, purge transgender troops from the military, and dismantle federal agencies. Five different judges have blocked Trump's move to end birthright citizenship while litigation on the issue continues.
With Congress compliant and Democrats in disarray, the judiciary has emerged as the primary check on Trump's plans to assert sweeping presidential power.
Amanda Frost, a law professor at the University of Virginia School of Law, said Trump largely has himself to blame for his early losses in court, because many of his actions contradict legal norms and precedents.
"He's blatantly violating the law in many respects, not pushing the envelope or engaging in reasonable debate about what the law says," Frost said.
Still, many of the adverse rulings could be overturned on appeal, and Trump has a friendly 6-3 conservative majority on the Supreme Court. The president has won a handful of notable victories too, including on firing heads of independent agencies.
Republican frustration has mounted with each adverse ruling. Vice President JD Vance and Elon Musk have suggested officials defy court orders, government attorneys have tried to remove judges from cases, and Trump has called for impeaching judges.
The anger reached a crescendo earlier this month after U.S. District Court Judge James E. Boasberg temporarily blocked Trump officials from using the Alien Enemies Act to deport alleged Venezuelan gang members without hearings. Trump called for Boasberg's removal from the bench, prompting a rare rebuke from Chief Justice John G. Roberts Jr.
Hard-line Trump supporters in Congress crafted legislation to impeach Boasberg and other judges who had ruled against the president. House GOP leadership worked to tamp down that push, however, saying it is a political nonstarter, given opposition among some Republicans and the two-thirds Senate majority required to remove a judge. Republicans hold 53 of 100 Senate seats.
Congress has also never impeached a federal judge based on a ruling he or she has issued, according to the Federal Judicial Center, and most GOP lawmakers do not want to establish that precedent. The punishment is designed to address judicial misconduct.
"Impeachment is an extraordinary measure. We're looking at all the alternatives," Speaker Mike Johnson (R-Louisiana) told reporters last week. He suggested that Congress has the authority to eliminate district courts but later clarified that the House would not do so.
Democrats have derided Trump's impeachment calls. "I share the chief justice's feelings that discrediting the judiciary is a perilous thing in a constitutional democracy," said Sen. Dick Durbin (Illinois), the top Democrat on the Judiciary Committee.
Another avenue House Republicans plan to explore is limiting funding for federal courts through the yearly appropriations process. It's unclear if Rep. Dave Joyce (R-Ohio), a moderate who chairs the relevant subcommittee, would allow steep cuts. The idea would also face at least some GOP opposition in the Senate.
"I'm not going to support defunding an independent and equal branch of government, and I'm not going to support impeaching a federal judge unless you can prove to me that he or she has committed a crime or misdemeanor," said Sen. John Neely Kennedy (R-Louisiana), a Judiciary Committee member.
He said he instead favored legislation to curtail nationwide injunctions, an idea that has more traction with Republican lawmakers. Such rulings pause a policy or regulation while a lawsuit is pending if the judge believes the action may be unconstitutional and implementing it would cause immediate harm.
Two House Judiciary subcommittees held a joint hearing to "examine the constitutional limits of the judicial power, with a focus on recent temporary restraining orders (TROs) and injunctions that have infringed on the rightful power of the President of the United States," a news release said. Scheduled witnesses include former House speaker Newt Gingrich (R-Georgia), a fellow from the conservative Heritage Foundation, and a victim of the Venezuelan criminal organization Tren de Aragua.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) will lead a hearing on nationwide injunctions on Wednesday. Grassley and Sens. Mike Lee (R-Utah) and Josh Hawley (R-Missouri) each have introduced their own bills on injunctions.
The House is expected today to pass a bill by Rep. Darrell Issa (R-California) that would limit injunctions to the parties bringing a lawsuit.
The politics of turning such legislation into law remain daunting. Republicans hold a slim majority in the House, and any legislation would have to win the support of at least seven Democrats to avoid a filibuster in the Senate. Democrats, who are shut out of power in Washington, are unlikely to go along with efforts to rein in judges because courts are one of the few existing cudgels against Trump's agenda.
Among some Republicans, that reality appears to be setting in. Sen. Ted Cruz (R-Texas), a Judiciary Committee member, said on his podcast there's almost no chance Democrats vote to restrict nationwide injunctions. Defeating such rulings, he said, will have to come from the courts.
"The most likely and swiftest remedy will be the appellate process: the courts of appeals and the U.S. Supreme Court," Cruz said in an interview.
Complaints about nationwide injunctions generally come from whichever party holds the presidency. Not too long ago, Democrats were calling for limits, and Trump and his allies were celebrating judges who blocked parts of President Joe Biden's agenda. In 2023, Sen. Mazie Hirono (D-Hawaii) introduced a bill that would have made the U.S. District Court in D.C. the only federal court in the nation that could impose nationwide injunctions.
There are exceptions to the partisan trend: Republican Sens. Mitch McConnell (Kentucky), Tom Cotton (Arkansas) and Thom Tillis (North Carolina) introduced an anti-injunction bill last year.
Nationwide injunctions were sparse before the 1960s, but their use has spiked in recent years amid a polarized Congress and increasingly divided political environment.
"Both the left and the right are finding they can get preferred outcomes through the courts as opposed to through Congress much more now than in the past," said Gabe Roth, executive director of Fix the Court. "In the past, Congress took a more robust view of its power and responsibilities to pass legislation."
Federal judges issued six injunctions against the policies of President George W. Bush, 12 against President Barack Obama's initiatives and 64 against Trump's agenda in his first term, according to data compiled by the Harvard Law Review. Biden had 14 injunctions issued against his priorities.
Federal courts have latitude to apply injunctions to the parties involved a lawsuit or broaden them to the entire nation if a judge feels damage will be widespread. The injunctions are usually temporary and meant to preserve the status quo, giving courts time to consider additional action or rule on the merits of a lawsuit.
Supporters say nationwide injunctions offer the swiftest remedy to potentially illegal government action, prevent federal courts from becoming clogged with multiple lawsuits on the same issue and are the only practical way to address some regulations, like immigration policy, that have nationwide sweep.
But an increasing chorus of critics say these types of rulings give the nearly 700 federal district court judges too much power. Nicholas Bagley, a professor at the University of Michigan Law School, said partisans in both parties have perfected the art of seeking out friendly courts to file their challenges.
"It increases the benefits of forum shopping," Bagley said of nationwide injunctions. "That's why we saw all these cases during the Biden administration being brought in single courthouse districts in Texas because you know you are going to get a judge who is pretty partisan and be more willing to enter a nationwide injunction against whatever program you dislike."
The Harvard Law Review data reveals a starkly partisan picture of nationwide injunctions. Nearly 90 percent of blocks issued against presidential policies and regulations were from judges nominated by a president from the opposing party.
Elizabeth P. Foley, a professor at the Florida International University College of Law, said the divide erodes trust in the courts.
"This creates a public perception that judges are just politicians in robes," Foley wrote in an email. "And this, in turn, undermines public confidence in the judiciary and the rule of law."
Trump has tried to stoke that perception in a barrage of posts on Truth Social, saying the judges restraining him are politically biased. The attacks are reminiscent of his playbook during his criminal prosecutions.
"Unlawful Nationwide Injunctions by Radical Left Judges could very well lead to the destruction of our Country!" Trump wrote on Truth Social last month.
But a Post analysis of every court action against Trump shows judges appointed by both Democratic and Republican presidents have regularly ruled against him, although judges appointed by Democrats have handled about 70 percent of the cases so far. At least five preliminary injunctions and eight temporary restraining orders have been issued by judges appointed by Republicans, compared with at least 25 temporary restraining orders and 20 preliminary injunctions from those appointed by Democrats.
These figures include rulings where only part of the plaintiffs' proposed orders were issued. Judges appointed by Trump in his first term have heard a relatively small number of challenges, but they have overwhelmingly ruled in his favor.
Congress is not the only entity that could limit nationwide injunctions. Foley said a majority of the Supreme Court could amend the scope of such rulings under a law known as the Rules Enabling Act. Justices Neil M. Gorsuch, Clarence Thomas and Elena Kagan have expressed concerns about nationwide injunctions recently.
Acting solicitor general Sarah M. Harris asked the high court to curtail nationwide injunctions in her recent appeal of rulings that have blocked Trump's effort to end birthright citizenship, one of his most controversial and legally questionable initiatives.
"Universal injunctions have reached epidemic proportions since the start of the current Administration," Harris wrote in a court filing. "That sharp rise in universal injunctions stops the Executive Branch from performing its constitutional functions before any courts fully examine the merits of those actions."