President Donald Trump’s agenda to test what federal courts will allow

WASHINGTON — When President Donald Trump issued an executive order ending birthright citizenship on his first day in office, the pro-immigration group Make the Road New York sued that same day to block it.

Trump’s directive to reinterpret that 14th Amendment clause was just one of 26 executive orders he issued on Day One, drawing dozens of lawsuits filed by advocacy groups and Democrats in New York and other states and creating a massive battle in federal courts.

With 64 executive orders and more than 40 other executive actions listed on the White House website during his first 25 days as president, Trump has a set a record for a president using the power of his office to shrink the government, cancel policies and slash spending.

With few if any checks on Trump’s expansive orders by a Republican-controlled Congress, nearly 70 legal challenges have been filed against his orders, including some that could make it to the U.S. Supreme Court to determine just how much power a president can wield.

Trump and Vice President JD Vance have criticized lower court rulings against them and have sent mixed messages about whether the White House will in the end abide by federal court decisions.

“The Trump administration is flexing executive power in a way that it has never been flexed before in American history,” said attorney James Sample, a professor at Hofstra University’s School of Law.

Still, most Republicans back Trump’s agenda. New York State Republican Chairman Ed Cox said in a statement to Newsday: “I support President Trump’s use of executive orders to secure our border, clean up our streets and reign in the out-of-control federal bureaucracy.”

Most Democrats oppose it. Senate Majority Leader Chuck Schumer (D-N.Y.) last week said on the Senate floor that for more than 200 years the United States has had a system of checks and balances.

“At this point, Donald Trump is trying to break that tradition in area after area after area,” Schumer said. “And so, the courts have begun to speak, and their message is very simple: The law is not optional, not even for a president of the United States.”

New York challenges

Trump’s executive actions span the federal sphere.

His orders reshape foreign policy and national security, crack down on immigration, alter finance and technology rules, put energy over climate, cancel diversity programs and transgender rights, ban abortion, and slash government spending and employment.

“This is exactly what he promised in the campaign: To cut the size of government, to get rid of programs, to not make modifications but wholesale changes,” said presidential scholar Meena Bose at Hofstra University. “And that’s clearly what the president is attempting to do.”

New York pro-immigration groups and Attorney General Letitia James, both veterans of the first Trump administration, have responded with lawsuits along with advocacy groups and attorneys generals in other states.

States and groups have filed nine lawsuits to block the birthright citizenship order.

On Monday, a federal judge issued a preliminary injunction to pause that order in a case filed by the ACLU on behalf of Make the Road New York, which has a branch in Brentwood, and other groups. New York and 21 other states also filed a lawsuit, and on Thursday the New York Immigrant Coalition and LatinoJustice PRLDEF representing an expectant mother launched a legal challenge to it.

So far, judges in Seattle and Maryland have issued preliminary injunctions on the order. The Trump administration has appealed the Seattle case.

Meanwhile, Make the Road New York also has filed a lawsuit to block a Trump executive order that calls for expedited removal of noncitizens who cannot prove they have lived in the United States continuously for two years. A ruling is pending.

New York and other Democratic states won a temporary restraining order barring Elon Musk’s Department of Government Efficiency from accessing sensitive Treasury Department materials.

And those states also won a pause in Trump’s federal spending freeze and defeated his appeal, and won a temporary restraining order on a policy to limit overhead on research at the National Institutes of Health.

Three buckets

Trump has ordered a range of actions, some well within his authority, some on the edge and some that could be over the line.

Trump so far has won preliminary victories in two cases while courts have paused 18 cases as of Thursday. But in the majority of lawsuits against Trump’s executive actions, the courts have not made any ruling yet.

Hofstra’s Sample said he thinks Trump’s scores of executive actions fit into one of three buckets once they get before a judge.

“There’s a bucket of things that is pretty clearly unconstitutional, or at least illegal under statutory law as we’ve known it to date,” Sample said.

Sample pointed to Trump’s reinterpretation of birthright citizenship and his orders shutting down federal agencies whose funding was appropriated by Congress as examples.

“On the other end of the extreme is the things that are clearly within presidential executive power, and they may or may not be good policy, but they’re legal,” Sample said. He cited Trump’s pardons of the Jan. 6 defendants as an example. 

“The bucket in between is where the administration is pushing the envelope,” he said. “For sure, they will probably lose in the near term because they’re contradicting governing precedent, but they may win some of those in the in the longer run, maybe before the Supreme Court.” he said.

He pointed to Trump’s firing of officials in the executive branch and even in independent agencies such as the Consumer Financial Protection Bureau or the FBI, the CIA and USAID — and the offer of buyouts, which a federal judge halted and then OK’d.

The Supreme Court arguably has gotten more lenient over the years about allowing the president to fire agency heads and executive branch employees, Sample said, but it will be trickier for the Trump team to fire the rank and file with Civil Service protections, contracts and collective bargaining agreements.

“I think they’ll win on some and they’ll lose on some,” Sample said, “but it’ll probably be on narrow grounds.”

Constitutional crisis?

Trump’s actions to expand the powers of the presidency and hints that he might not abide by court rulings against his executive actions have set off alarms. Sen. Chris Murphy (D-Ct.) and some legal scholars have warned that the United States is in a constitutional crisis.

But political scientist Christopher Malone, associate provost at Farmingdale State College said we’re not there yet. Instead, he said, the United States is nearing a constitutional stress test.

“For most of our history, we’ve passed the constitutional stress tests with Supreme Court decisions and what happens after because we’ve respected the rule of law once the decision has been handed down, and we haven’t had constitutional crises,” he said.

Trump and his aides have issued orders that have “stretched the limits of executive power,” Malone said, resulting in a flurry of federal lawsuits.

“Every constitutional lawsuit that makes it to the Supreme Court is a constitutional stress test,” he said.

If the Supreme Court issues a decision against Trump, he said, “The stress test will be: Will it hold or will he not abide? And that’s when we’ll get to the constitutional crisis.”