“This was an Obama judge,” President Donald Trump noted in November 2018, alluding to a ruling that briefly blocked his asylum restrictions. “And I’ll tell you what, this won’t play out like that again.”

The decision in question concerned a provision of the Immigration and Nationality Act that says any alien may seek asylum if he is physically present in the United States or if he arrives in the United States…whether or not at a designated port of arrival. In direct contrast to the statute’s plain terms, Trump had issued a proclamation preventing asylum applications by people who entered the country between ports of entry along the southern border. The Department of Homeland Security (DHS) had turned this into rules that rendered such asylum seekers categorically ineligible.

In response to a lawsuit brought by an immigrant-rights group, Jon Tigar, a federal judge in Oakland, California, issued a temporary restraining order against the new asylum policy on the grounds that it violated federal law. Yet, as Trump framed it, Tigar had ruled against him for partisan reasons.

Although Trump’s remark about Tigar was comparatively restrained beside his subsequent outbursts against judges who disagreed with him, it drew a rare public rebuke from Chief Justice John Roberts, a George W. Bush appointee. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a Supreme Court statement. “What we have is an exceptionally dedicated group of judges who strive to treat everyone fairly. We should appreciate that independent judiciary.”

By now it should be clear that Trump harbors little appreciation for an independent judiciary, which he regards as a legitimate obstacle to his policy aims and personal preferences. That stance comes through in his denunciations of judges and justices who resist his wishes, sometimes voicing calls for their impeachment. It also appears in the arguments prosecutors have made on his behalf in court, particularly in his second term, where lawyers for the Justice Department have pressed the idea that courts have no business examining his decisions or, at minimum, ought to defer to him so extensively that he could act almost unrestrained.

Time and again, Trump’s lawyers have argued that judicial review is unnecessary or unnecessary to question his choices. They have staked out that position in cases addressing a range of issues—tariffs, the Alien Enemies Act, National Guard deployments, political retaliation, and even the fanciful project of turning the East Wing of the White House into a vast, ostentatious ballroom.

Trump’s objection to judicial review goes beyond challenging the logic or conclusions of opposing judges. It represents a frontal challenge to the rule of law and to the separation of powers.

Trump Claims Unreviewable Authority To Deport ‘Alien Enemies’

One Tuesday morning in March 2025, Trump vented his anger at James Boasberg, the chief judge of the U.S. District Court for the District of Columbia. “This radical left lunatic of a judge, a troublemaker and agitator who was unfortunately appointed by Barack Obama, was not elected President,” Trump posted on Truth Social. “I’m simply carrying out the will of the voters. This judge, like many other crooked judges I’m forced to face, should be IMPEACHED!”

Three days earlier, Boasberg had temporarily blocked Trump’s plan to deport alleged members of the Venezuelan gang Tren de Aragua to a notoriously harsh facility in El Salvador. To justify those removals, Trump leaned on a highly questionable interpretation of the Alien Enemies Act (AEA), a statute enacted in 1798 during a period of fear of a potential war with France.

The AEA covers only situations in which there is a declared war between the United States and a foreign nation or government, or when a foreign nation or government has infringed or threatened to infringe the United States. In those circumstances, it authorizes the president to deport “natives, citizens, denizens, or subjects” of the offending party.

Under that language, Trump’s use of the AEA made little sense. The United States was not at war with Venezuela, and there was no invasion or predatory incursion by a hostile nation. Even if the DHS had correctly identified Tren de Aragua members, the group was not a “foreign nation or government,” nor were its members “natives, citizens, denizens, or subjects” of one. Nevertheless, Trump moved to expel Venezuelan detainees before any such scrutiny could occur, which explains why the DHS conducted the operation on a weekend without warning.

After lawyers from the American Civil Liberties Union (ACLU) learned of the plan, they filed a class action suit on behalf of five named Venezuelan detainees and others in similar circumstances. Given the likelihood that detainees would be removed imminently, they also sought a temporary restraining order. In light of the “exigent circumstances,” Boasberg swiftly granted the TRO, blocking deportation of the named plaintiffs.

All of that happened before Trump posted the proclamation purporting to authorize deportations by invoking the AEA. The document didn’t appear on the White House website until 4 p.m.; an hour later Boasberg convened a Zoom hearing that featured ACLU attorney Lee Gelernt against Deputy Assistant Attorney General Drew Ensign. After hearing from both sides, Boasberg certified the class action and orally extended the TRO to shield all noncitizens in U.S. custody who fell under Trump’s proclamation.

During the hearing, Ensign assured Boasberg that the named plaintiffs wouldn’t be deported while the case remained pending. Yet he declined to explain what was happening to other class members. It soon emerged that flights to El Salvador had already begun and continued into the night, even after Boasberg had converted his oral directive into a formal order.

“Any plane carrying these individuals that is about to take off or already in flight must be returned to the United States,” Boasberg told Ensign. “However you achieve that—whether turning the plane around or preventing boarding of detainees covered by this order—I leave that to you. But this must be done immediately.”

That directive was ignored. A total of 238 Venezuelan detainees were flown to El Salvador on three flights from Harlingen, Texas, including one departure that occurred after Boasberg had issued his written order.

Trump clearly intended to deport his targets before they could be reviewed by the courts. When Boasberg nonetheless managed to safeguard a handful of them, the president raged. He argued that voters had given him an overwhelming mandate to take a hard line on illegal immigration, and that Boasberg—“not elected,” having not won the popular vote, not winning all swing states, and not carrying the day in counties—lacked the power to second-guess his plan. In Trump’s view, this made Boasberg unfit for the federal bench and deserving of impeachment.

As with the 2018 dispute over Tigar, Chief Justice Roberts again responded. “For more than two centuries,” he noted shortly after Trump’s Truth Social tirade, “impeachment has not been an appropriate response to disagreement over a judicial decision. The normal appellate review process exists for precisely this purpose.”

In court, the Trump team did not describe Boasberg as a “troublemaker” or “radical left lunatic.” Yet they argued that Boasberg should not decide whether Trump’s authority under the AEA, the legality of his proclamation, or the government’s identification of those affected could be reviewed.

“The Court lacks jurisdiction because the presidential actions the plaintiffs challenge are not subject to judicial review,” argued Attorney General Pam Bondi and ten subordinates in a March 2025 motion seeking to lift the TRO. “The President’s authority and discretion under the AEA is not a proper subject for judicial scrutiny.” They added that the President’s invasion determination, equating illegal immigration with “an invasion or predatory incursion,” could not be reviewed by the courts.

Even if review were possible, Bondi and colleagues argued, it would be limited to habeas petitions filed in Texas, where the detainees were being held, rather than Boasberg’s court in Washington, D.C. They claimed that, at most, a petitioner challenging the application of an AEA proclamation would be challenging the lawfulness of detention, a minimally scoped habeas claim. They also suggested the inquiry would focus on only a few narrow questions, such as whether a “declaration of war” existed and whether the detainee was an enemy alien aged fourteen or older.

The government’s lawyers did not admit that AEA detainees had a right to file habeas petitions, which would have been awkward since those detainees already deported as “alien enemies” never had that opportunity.

When the case reached the Supreme Court in April, the majority agreed that Boasberg lacked jurisdiction and vacated his TRO. Yet the justices rejected the claim that judicial review was categorically unavailable. The court ruled that AEA detainees have a due‑process right to challenge their detention through habeas petitions in Texas, meaning the government must provide them a realistic chance to pursue relief in the proper venue before any removal occurs.

“It is well established that the Fifth Amendment guarantees due process for aliens in removal proceedings,” stated the unsigned decision in Trump v. JGG. “Detainees must receive notice and an opportunity to be heard appropriate to the circumstances.” The opinion added that AEA detainees must receive notice after the order was issued that they are subject to removal under the Act, with notice given within a reasonable time and in a manner allowing them to seek habeas relief in the suitable forum before removal.

Review of habeas petitions could involve questions of interpretation and constitutionality, the justices noted, casting doubt on the government’s claim that the President’s authority and discretion under the AEA is beyond judicial review. The Justice Department revived that argument at the 5th Circuit a couple of months later.

“The President’s determination that the factual predicates of the AEA have been met is not subject to review,” instructed Ensign to the 5th Circuit in June 2025. “Alternatively, it is subject to extremely deferential review.”

The 5th Circuit did not buy that. In September’s WMM v. Trump, a divided three-judge panel held that there was no invasion or predatory incursion to justify the president’s proclamation. The government asked the full court to reconsider, and the court agreed to do so. Yet on August 13, seven months after hearing oral argument, the 5th Circuit dismissed the case because the three named plaintiffs threatened with removal under the AEA had already been deported under the Immigration and Nationality Act.

Trump Says He Can Deploy the National Guard at Will

Trump’s use of the National Guard, which he deployed last year in California, Oregon, and Illinois without consent from state or local governments, raised analogous questions about statutory interpretation and judicial power. To defend those operations, Trump invoked 10 U.S.C. 12406, a provision permitting the president to call into federal service the National Guard of any state under three circumstances. He leaned primarily on Subsection 3, stating that ongoing protests against his immigration crackdown left him unable to enforce the laws with regular forces.

After U.S. District Judge Charles Breyer issued a TRO blocking Trump’s Los Angeles deployment in June 2025, the government sought to override that ruling at the 9th Circuit. During the ensuing hearing, 9th Circuit Judge Mark Bennett, a Trump appointee, asked whether the government maintained that the court had no role at all in reviewing the president’s decision to call up the militia under Subsection 3.

“Yes,” Shumate replied, “our view is that the statute vests the decision to mobilize the forces in the president’s unreviewable discretion. So no, there’s no role for the court in reviewing that decision.”

Judge Bennett pressed: what if the president simply cites a justification that isn’t listed in the statute? If there are no facts offered to support it and nothing that would look reasonable to a court, would it still be true that the court has no role to determine whether the president properly invoked Subsection 3?

Shumate again said yes: “That’s correct, because if the statute is unreviewable, it’s unreviewable.”

Eric Miller, another Trump-appointed member of the panel, pushed further: what if the president offered a justification that was not one of the enumerated purposes? Even then, Shumate replied, the answer would be the same: if it’s unreviewable, it’s unreviewable. He conceded that abuses might occur, but noted there are political checks on the president’s power, and that the court should not overstep its authority by determining whether the president complied with the statute’s terms.

That position proved too much for Judge Bennett, Judge Miller, and the third member of the panel, Jennifer Sung, a Biden appointee. A couple of days later, they agreed to stay Breyer’s order during the case’s pendency, but they explicitly rejected Shumate’s view that the president’s use of Section 12406 fell outside judicial review as a “political question.”

“Because the political-question doctrine rests on the constitutional separation of powers, it has historically applied to constitutional cases,” the Seventh Circuit noted in a unanimous, unsigned ruling. “It has not been available in cases involving statutes. Applying it here would essentially grant the President supremacy over Congress by ignoring the limits the latter placed on the former, jeopardizing the very separation of powers the doctrine was designed to protect.”

Even though the 9th Circuit acknowledged that its review of presidential determinations in this area would be highly deferential, it identified limits. It rejected the government’s position that the President could federalize the National Guard with no evidence, and that courts could not review a decision that appeared absurd or made in bad faith.

The court added that some interference with how laws are carried out is not, by itself, enough to justify invoking Subsection 3. The statutory framework makes clear that Subsections 1 and 2 address invasions and rebellions that imperil normal government functions, and if the government’s reading of subsection three were adopted, it would swallow substantially the other subsections because any disruption of law enforcement could trigger it.

The Seventh Circuit, which in October 2025 declined to block a TRO against Trump’s National Guard deployment in Chicago, likewise rejected the notion that judges lack power to evaluate the legality of presidential actions. The government’s appeal to override the decision was urged to the Supreme Court, with the Solicitor General reiterating that the President’s determination to call up the National Guard is not reviewable at all.

The Supreme Court disagreed in December 2025, leaving the TRO in place by a 6–3 vote. In Trump v. Illinois, the majority suggested the president had misread the statute he cited.

“We conclude that the term ‘regular forces’ in §12406(3) probably refers to the regular armed forces of the United States,” the five justices explained in an unsigned ruling. “To call the Guard into active federal service under §12406(3), the President must be unable to execute the laws with the regular military. Because the statute contemplates evaluating the military’s ability to enforce the laws, it likely applies only in exceptional circumstances.”

A week later, Trump announced that he would withdraw National Guard personnel from Chicago, Los Angeles, and Portland. “We may return in a much stronger form when crime begins to rise again,” he warned on Truth Social. “This is only a matter of time.”

Trump Claims Unlimited Tariff Powers

When Trump announced stiff tariffs on goods from nearly every nation in 2025, he again leaned on a controversial reading of a federal statute that he claimed granted him essentially unreviewable authority. He invoked the International Emergency Economic Powers Act (IEEPA), a 1977 law that does not expressly mention tariffs and had never been used to impose them. He asserted that he uncovered a hidden power to rewrite the tariff schedule approved by Congress, which has the constitutional authority to lay and collect taxes, duties, imposts and excises.

Among other things, IEEPA authorizes the president to regulate…importation in certain circumstances. Under that heading, Trump argued that he could impose taxes on imports from any country he selected, at any rate he deemed appropriate for any duration he deemed necessary, provided he first declared a “national emergency” involving an unusual and extraordinary threat to the United States’ security, foreign policy, or economy.

Trump claimed two such emergencies. To justify tariffs against China, Mexico, and Canada announced in February 2025, he cited the extraordinary threat posed by illegal immigration and drugs. When he announced his Liberation Day tariffs two months later, he cited persistent large trade deficits.

It seemed unlikely that these long-standing problems could fairly be described as an unusual and extraordinary threat, but Trump maintained that the decision lay entirely with him.

“The ‘unusual and extraordinary threat’ asserted as a national emergency by the Liberation Day Order is not an emergency,” argued the businesses challenging Trump’s IEEPA tariffs in the U.S. Court of International Trade (CIT). “Trade deficits are not unusual or extraordinary—the United States has experienced a net trade deficit for most of the postwar era, and certainly since the 1970s.”

The plaintiffs also questioned Trump’s assumption that trade deficits are inherently problematic: “Nor are trade deficits an emergency or even necessarily a problem; they simply indicate that another country sells many goods Americans want to buy, or that its people are unable or unwilling to purchase many American goods. Moreover, trade deficits go hand in hand with capital inflows, which can increase investment in this country.”

The government’s lawyers argued that none of this mattered for law. “The question of whether a threat is unusual or extraordinary is a matter for Congress,” they said. “Courts have consistently held that the President’s emergency declarations under the National Emergencies Act, and the adequacy of his policy choices under IEEPA, are unreviewable.”

In short, Trump claimed that Congress had wholly delegated tariff authority to the president, with the only check being his own determination that an emergency existed. That claim was rejected by every court that considered it, including the CIT, the U.S. District Court for the District of Columbia, and the U.S. Court of Appeals for the Federal Circuit.

Trump’s response to the Federal Circuit’s ruling reflected a knee-jerk belief that judges ruling against him were politically biased. He labeled the court “highly partisan,” and described the majority as “a radical left group of judges,” insinuating that results were dictated by ideology rather than objective law. This portrayal was hard to take seriously, given that the Federal Circuit’s panel included judges appointed by both parties and that the majority was not uniformly composed of Trump nominees. Several Democratic appointees were among the judges who wrote the majority opinion, and some of the dissenters had Republican sympathies.

More crucially, the majority’s reasoning was notably conservative. It acknowledged that Trump’s use of IEEPA was unprecedented and invoked the major-questions doctrine, a principle designed to safeguard the separation of powers.

The Supreme Court had defined the major-questions doctrine in a series of decisions driven by conservative jurists. The late Justice Antonin Scalia, whom Trump lauded as a paragon of jurisprudence, explained in 2001 that Congress does not delegate major regulatory tasks in vague terms or secondary provisions. He warned against letting elephants hide in mouseholes.

The Court has applied this approach in a number of cases that rejected expansive agency authority, including challenges to the FDA’s attempt to regulate tobacco without explicit congressional authorization, the COVID-era eviction moratorium imposed by the CDC, the OSHA vaccine mandate in 2021, and the student-debt relief plan under the Biden administration. Whatever one thinks of those rulings, they do not demonstrate a “Radical Left” mindset.

Notably, Lourie was among the four judges who went beyond the majority in the Federal Circuit decision, arguing that IEEPA “does not authorize the President to impose any tariffs.” In a related case, the Supreme Court agreed with that broader reading last February in Learning Resources v. Trump.

Trump again rejected the possibility that sound legal considerations might justify questioning his assertion of unlimited tariff power. He dismissed the three Democratic appointees in the majority as a “disgrace to our nation,” declaring they oppose America’s strength and his campaign to “Make America Great Again.”

That stance was, in his view, predictable. Yet he reserved particular outrage for Justices Neil Gorsuch and Amy Coney Barrett, two of his own nominations who joined the decision. He accused them of lacking the courage to act in the country’s best interest, calling them an “embarrassment” to their families and labeling them as unpatriotic and disloyal to the Constitution.

Trump remained furious about the tariff ruling a month later, accusing Gorsuch and Barrett of bending to political influence and portraying their judgments as a betrayal of the independence the Court should embody. He insisted that dissenting Democratic appointees were a perpetual obstacle to his agenda, while his own appointees were unfairly treated when they disagreed with him.

Can Trump Do Whatever He Wants With the White House?

After the IEEPA tariffs were struck down, Trump announced another broad set of import taxes, this time relying on Section 122 of the Trade Act of 1974. This provision permits tariffs in response to “fundamental international payments problems” caused by serious balance-of-payments deficits. The central question was whether Trump was right to claim that the United States was facing such a situation.

As with the IEEPA cases, the Justice Department argued that courts had no jurisdiction to decide the matter. In April, Assistant Attorney General Brett Shumate told the Court of International Trade that the president’s view of a “large and serious balance‑of‑payments deficit” was an unreviewable exercise of executive judgment. The CIT disagreed and, in May, ruled that the new tariffs were not authorized because Trump had failed to identify balance-of-payments deficits under Section 122.

The government’s lawyers pressed a parallel argument when defending Trump’s broad retaliation against law firms that represented clients or causes he dislikes. Among other measures, the administration suspended security clearances at those firms, hampering their ability to handle matters requiring access to sensitive information.

“Courts may not review a decision to deny or revoke a security clearance, even when the challenge raises statutory or constitutional questions,” acting Associate Attorney General Chad Mizelle told Judge Richard Leon in a District of Columbia court after one firm sued over the penalties. Leon, a George W. Bush nominee, disagreed. While some decisions about individual security clearances may be immune from review, Leon ruled in May 2025 that Trump’s blanket revocation of security clearances for certain firms violated the First Amendment.

A year later, when the U.S. Court of Appeals for the D.C. Circuit examined similar challenges by other law firms, the Justice Department continued to argue that Trump’s blanket suspension of security clearances was not reviewable. Judge Cornelia Pillard, an Obama appointee, posed a hypothetical: what if a Democratic president deemed any attorney who represents a Republican to be a national-security threat and thus unauthorized to hold clearances? The government’s lawyer, Abhishek Kambli, responded that the question would be the same—the issue is whether it is reviewable at all.

Even when courts conclude that the president has broken the law, the administration contends that this does not automatically empower the judiciary to remedy it. In June, for instance, a Justice Department attorney asserted that an order blocking the president from completing his promised White House ballroom would be improper to enforce.

Last October, Trump gutted the East Wing of the White House, planning to replace it with a far larger structure. The National Trust for Historic Preservation challenged the project, and in March, Judge Leon ruled that the plan was unlawful because no statute grants the President that authority.

Judge Leon observed that the president is the steward of the White House for future generations, but not its owner. He issued a preliminary injunction prohibiting the project from moving forward without congressional authorization.

During a June 5 hearing, Principal Deputy Assistant Attorney General Yaakov Roth urged the D.C. Circuit to permanently lift the injunction. Even if the court ultimately agreed with Leon’s reasoning, Roth argued it would be an abuse of discretion to uphold the injunction because the ballroom project serves national security interests and was already well underway.

“If the government acted too quickly to bulldoze the Statue of Liberty, would there be nothing that could be done?” Judge Patricia Millett asked. “Would it be improper to stop the project even from day one?” Roth replied that he believed that to be correct, and he suggested that Congress could intervene with legislation to halt the project if necessary.

Millett pressed: “If the government decides to move so rapidly as to bulldoze the Statue of Liberty, why would anything be stoppable?” Roth replied that this could be handled only by Congress, and that the appellate court might issue a declaratory judgment declaring the project illegal, after which Congress would determine a remedy given the national-security considerations at stake and the project’s progress.

“So, if the government acts so quickly, nothing can be done unless Congress intervenes?” Millett asked. “That’s right,” Roth replied. He allowed that the appellate court could issue a declaratory judgment, and Congress could decide how to respond, given the national-security interests involved and the project’s momentum.

Millett pressed further: “If the government decides, very quickly, to bulldoze the Statue of Liberty, but acts too fast to stop it, what then?” Roth remained unmoved. “That would be right,” he repeated. He acknowledged that Congress could pass a law prohibiting the project, in which case the executive branch would be obliged to obey.

“So this is essentially something that cannot be halted except by Congress?” Millett asked. “Yes, that’s correct,” Roth said. He allowed that the appeals court could issue a declaratory judgment declaring the project illegal, after which Congress could decide how to proceed, considering national-security imperatives and the project’s advance.

Millett returned to the point. “If the government moves so aggressively that it bulldozes the statute of Liberty, would there be any recourse?” Roth repeated that answer: Congress alone could stop it. He conceded that the appellate court could issue a ruling that the project is illegal, but Congress would then need to determine a remedy in light of national-security concerns and the project’s current status. Millett pressed again, and the room exhaled in astonishment when Roth confirmed the point.

Two months later, in an opinion joined by Biden appointee Bradley Garcia, Millett rejected Roth’s stance, refusing to accept that the ballroom’s policy goals were so essential that legality could be ignored. Millett noted that under Trump’s theory, the President could simply demolish the entire White House and replace it with a personally designed building, and the court would have no say. The defendants had not shown that Congress had delegated such authority to the President or to the National Park Service. The question of whether such a project should proceed, Millett emphasized, is a decision for Congress, not for executive self-help.

As the audience at the D.C. Circuit heard, Trump’s claims of unreviewable authority were remarkable. By trying to carve the courts out of the framework established by the Framers, he aimed to undermine a fundamental safeguard against tyranny.