by Stephen Kaus on May 27, 2025 (BeyondChron.org)
President Donald J. Trump, TruthSocial, May 26, 2025:
“HAPPY MEMORIAL DAY TO ALL, INCLUDING … JUDGES WHO ARE ON A MISSION TO KEEP MURDERERS, DRUG DEALERS, RAPISTS, GANG MEMBERS, AND RELEASED PRISONERS FROM ALL OVER THE WORLD, IN OUR COUNTRY SO THEY CAN ROB, MURDER, AND RAPE AGAIN — … HOPEFULLY THE UNITED STATES SUPREME COURT, AND OTHER GOOD AND COMPASSIONATE JUDGES THROUGHOUT THE LAND, WILL SAVE US FROM THE DECISIONS OF THE MONSTERS WHO WANT OUR COUNTRY TO GO TO HELL. … GOD BLESS AMERICA!”
Recent Supreme Court decisions mostly show no respect for lower court decisions that almost uniformly find that Trump’s actions violate the Constitution and statutes. The high court continues to inject itself into cases just getting started.
For example, the Supreme Court countermanded trial and appellate decisions preventing Trump’s firing of the heads of supposedly independent agencies, ejecting transgender people from the military, protecting the protected status of Venezuelan immigrants and allowing access to DOGE records. The Court acted quickly and without hearing, using its infamous “shadow docket” instead of normal procedure.
Many of the significant trial court decisions are from San Francisco.
The only area in which the Supreme Court has supported the lower courts and stood up to Trump is the requirement that those being deported receive some due process. In a 7-2 decision famously issued in the middle of the night, the Court prevented removal of immigrants in the Texas Bluebonnet Detention facility after less than 24 hours’ notice of their deportation under the Enemy Aliens Act.
The majority’s urgency explicitly was based on the Trump administration’s contention that once people are removed, American courts lose jurisdiction. Justice Alito, joined by Justice Thomas, wrote a particularly mean-spirited and technical dissent that failed to recognize this exigent situation.
Previously, the court ruled 5-4 that those being deported under the Alien Enemies Act “must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
In other matters, Trump has had his way with the Supreme Court
Stay on Transgender Ban Lifted Earlier in May, the Court lifted a district court’s nationwide order preventing Trump from carrying out his executive order to remove all transgender individuals from the military. Washington District Judge Benjamin Settle had found that the ban likely violated the equal protection guarantee of the Fifth Amendment.
The Ninth Circuit had denied the stay. As a practical matter, the Supreme Court action means that all transgender people will have been removed from the military by the time the case is finally decided. It is also not unexpected. As predicted here in March, an order countermanding Trump on this point is one of the least likely to stand up on appeal because the military is uniquely the President’s responsibility.
Trump’s firing of “Independent” Board Members Allowed On May 22nd, the Supreme Court allowed Trump’s firing of Democratic members of the National Labor Relations Board (“NLRB”) and the head of the Merit Systems Protection Board (“MSPB”) to go ahead. This overruled two separate orders stopping the terminations by D.C. federal judges Rudolph Contreras and Beryl Howell.
The brief unsigned order indicated that the Court is likely to give Trump this power over all agencies except the Federal Reserve. Three dissenting liberal justices relied on previous Supreme Court precedent that held that President Franklin Roosevelt could not fire Federal Trade Commissioners without cause.
In recent years, conservative commentators, such as Berkeley Law’s torture memo author John Yoo, have concocted a “unitary executive theory” that holds that the “independent” agencies are actually under the President’s thumb. Along with previous Supreme Court decisions eliminating court deference to agency interpretations and limiting what powers are delegated to agencies, this decision fits comfortably into the right-wing campaign against expertise.
No Protected Status for Venezuelan Immigrants On May 19th, the Supreme Court lifted a stay issued by San Francisco federal judge Edward Chen that halted Trump’s revocation of the Temporary Protected Status (“TPS”) President Biden had granted to numerous Venezuelans living in the United States. Only Justice Jackson dissented.
After extensive briefing and a hearing, Judge Chen issued a 78-page order finding that Trump’s justification that the whole Venezuelan TPS population was released from Venezuelan prisons and mental health facilities and imposing huge financial burdens on local communities, is “baseless and smacks of racism.” Judge Chen noted that the undisputed record showed the TPS holders are more likely to hold bachelor’s degrees (40-54%) and less likely to commit crimes than the general U.S. population. They “annually contribute billions of dollars to the U.S. economy and pay hundreds of millions, if not billions, in social security taxes.”
The Ninth Circuit denied Trump’s motion for a stay, but the Supreme Court granted it with a perfunctory four sentence unsigned order. A normal Supreme Court case has months of briefing and oral argument before the Court takes equally long to issue a decision.
No Access to DOGE Records On May 23rd, Chief Justice Roberts stayed an order by D.C. Judge Christopher Cooper that the plaintiffs in a case against DOGE could see certain records and question Amy Gleason, the nominal head of DOGE. The D.C. Circuit Court had denied a stay after considering the matter for a month. Presumably, the entire Supreme Court will consider this case.
Other Supreme Court Orders The Supreme Court undid a district court order requiring the Department of Education to restore temporarily millions of dollars of teacher training grants in eight blue states that were revoked as part of the putative DEI crackdown. The Court also blocked San Francisco federal Judge William Alsup’s order requiring the rehiring of probationary employees purportedly fired for poor performance be rehired. This order was based on the standing of the plaintiffs whose allegations supported the injunction. Undeterred, Judge Alsup has relied on other plaintiffs to continue issuing similar orders.
MEANWHILE, THE LOWER FEDERAL COURTS CONTINUE TO STAND AGAINST AUTOCRACY
Trump’s Action against Harvard Blocked Massachusetts District Judge Allison Burroughs granted a temporary restraining order against Trump’s ban on Harvard teaching foreign students. The order says it is to preserve the status quo and avoid “immediate and irreparable injury before there is an opportunity to hear from all parties.”
Harvard contends that international students comprise a quarter of its student body.
A further hearing is scheduled for Thursday, May 29th.
Second Major Law Firm Wins Preliminary Injunction Against Trump’s Actions Last Friday, May 23rd, D.C. District Judge John Bates granted a permanent injunction sought by Jenner & Block blocking Trump’s Executive Order against the law firm. Last month, Perkins Coie obtained a similar order from a different D.C. judge.
Judge Bates wrote that Trump’s Executive Order, issued because the firm represented clients and took positions Trump does not like, “raises constitutional eyebrows many times over. It punishes and seeks to silence speech at the very center of the First Amendment; does so via the most egregious form of content discrimination— viewpoint discrimination; all in an unacceptable attempt to insulate the Government’s laws from judicial inquiry.” (cleaned up)
Judge Bates enjoined the Executive Order, among other reasons, because it “seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution….”
As a side note, several Jenner & Block partners are helping Harvard in its litigation against Trump.
San Francisco Judge Illston Issues Preliminary Injunction Against Reductions in Force On May 22nd, San Francisco District Judge Susan Illston, who previously had issued a temporary restraining order, granted a preliminary injunction against reductions in force (“RIFs”) that are contrary to statutes. “Congress creates federal agencies, funds them, and gives them duties that – by statute – [Presidents] must carry out,” Judge Illston wrote.
The decision contrasts Trump’s contentions of total power with the consistent previous understanding. “Put simply, in this case,” Judge Illston wrote, “defendants want the Court to either declare that nine Presidents and twenty-one Congresses did not properly understand the separation of powers, or ignore how the executive branch is implementing large-scale reductions in force and reorganizations. The Court can do neither.”
Even Trump in his first term sought congressional approval for executive branch reorganizations. When he did not receive it, Trump did not act.
Will this decision stand, or will the Trump favoring Supreme Court stay and ultimately reverse it? This comes down to the battle between Congress’s power to appropriate funds and make laws and the President’s power and responsibility to faithfully execute the laws.
As Judge Illston points out, the understanding that Congress must approve significant reorganizations is embodied in laws, such as the Congressional Budget and Impoundment Control Act of 1974, Presidential actions and court opinions. However, Trump is flexing executive muscle and claiming that everyone has been wrong all along. Trump asserts that the Budget and Impoundment Control Act, which has been dutifully followed for 50 years, is in fact unconstitutional and he can do what he wants.
I would not bet against Trump in the Supreme Court, even though his position is contrary to our foundational idea of checks and balances.
Department of Education Dismantling Blocked For similar reasons, Massachusetts District Judge Myong Joun held that the Department of Education could not be dismantled without congressional approval and issued a preliminary injunction.
The government’s claim that it was not closing the Department was undercut by the severity of the cut-backs and Trump’s statements, including an Executive Order directing the Secretary to “take all necessary steps to facilitate the closure of the Department of Education.” Again, this is a clash between Trump’s responsibility to carry out the law with Congress’s power to make it.
International Students Can Stay for Now San Francisco Jeffrey S. White ruled on May 22nd that foreign students could continue their studies while the legality of Trump’s order revoking their student visas is litigated.
The plaintiff students had some contact with law enforcement, but no criminal convictions. There are technical arguments in the case, but the bottom line is that Judge White questioned whether the students had been denied due process and saw the government action as improperly arbitrary and capricious.
Trump May Not Eviscerate the Institute for Peace The United States Institute of Peace (“USIP”) was set up as an independent nonprofit corporation in a statute signed by Ronald Reagan. It has been funded by Congress through seven Presidents to promote and develop methods of peacefully resolving conflicts.
President Trump has declared USIP “unnecessary” and, to quote D.C. District Judge Beryl Howell, “rushed through actions, including removal of Board members, to reach the professed goal of reducing all of USIP’s operations and personnel to the bare minimum to perform only mandated statutory tasks, while ignoring the broader statutory goals set out for the organization to fulfill.”
Judge Howell found that USIP is a “unique in its structure and function – neither a traditional Executive branch agency nor an entirely private nonprofit corporation.” Because USIP does not exercise executive power, but rather provides think-tank services, Judge Howell ruled that Trump cannot unilaterally remove its board members under the authorization statute and granted the plaintiffs summary judgement.
This is a valiant attempt to distinguish this case. From those involving the NLRB and MSPB, discussed at the beginning of this article, where the Supreme Court allowed Trump to have his way. We shall see how well this holds up.
Stephen Kaus is a retired Alameda County Superior Court Judge. He is a co-signer on a “friend of the court” brief in the Perkins Coie case being filed on behalf of a large national group of retired judges. @stephenkaus on X. @stephenkaus.bsky.social on Bluesky.
