Both Congress and the Supreme Court seem poised to kneecap what may be the only meaningful remaining constitutional check on the presidency: lower federal court judges.
Last week, the House of Representatives passed the absurdly named “One Big Beautiful Bill Act,” a hodgepodge of controversial tax breaks for the wealthy, spending reductions and increased work requirements for food aid and Medicaid programs and huge funding increases for President Trump’s mass migrant removal program, among other provisions.
Buried in its 1,000 pages is also this poison pill: “No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued.”
As law professor Erwin Chemerinsky explained for Just Security, the bill effectively requires payment of a bond before a federal judge can issue an injunction against the government or a private party. Yet “those seeking such court orders generally do not have the resources to post a bond, and insisting on it would immunize unconstitutional government conduct from judicial review. It always has been understood that courts can choose to set the bond at zero.”
Injunctions have been used to force the government’s compliance with federal law since at least 1913. By mandating the pre-payment of a bond as a prerequisite to injunctions, Chemerinsky writes, “the House bill would make the court orders in these cases completely unenforceable.”
This is a shameless gift to the Trump administration, which is facing down hundreds of lawsuits in the lower federal courts that seek to vindicate constitutional rights as basic as due process and free speech.
Meanwhile, the Supreme Court’s far-right majority is also taking steps to undermine the lower courts’ authority.
Consider the case challenging Trump’s executive order invaliding the constitutional right to birthright citizenship. At the Trump administration’s invitation, the justices have detoured into the question of so-called “universal injunctions” — admonishing their district court colleagues for acting too big for their britches while sidestepping the president’s blatant disregard of the 14th Amendment itself.
The implications of that case are stark. If the majority sides with Trump by banning judges from issuing orders that stop illegal government behavior nationwide, it could mean that every individual affected by an unconstitutional executive order — including the millions of children whose citizenship is tied to birth — must hire a lawyer and file a separate case to enforce the Constitution’s express language, effectively giving Trump a practical “win” on technical grounds.
In the meantime, Trump would be free to impose his unconstitutional ban against the vast majority of people affected through a procedural maneuver that sidesteps the heart of the problem: his own overreach. For the high court to seriously entertain this argument on the facts of this particular case is a swipe at the lower courts’ relative authority to uphold the Constitution against government abuses, too. (The Supreme Court only takes approximately 1 percent of appeal petitions per year, so it can’t do it all.)
On Thursday, in Trump v. Wilcox, a 6-3 majority overruled a 90-year-old precedent upholding Congress’s ability to require presidents to show cause before firing the heads of certain agencies — in that case, the heads of the National Labor Relations Board and the Merit Systems Protection Board. As Justice Elena Kagan noted in her dissenting opinion, by firing the agency heads without providing a reason, “Trump has chosen … to take the law into his own hands” in a way that no president has attempted “since the 1950s (or even before).” And the majority handed Trump his win “on an emergency docket” which, wrote Kagan, “while fit for some things, should not be used to override or revise existing law.”
The conservative majority’s snub of the work of the lower courts without full briefing and oral argument in its own capacity as an appellate court once again ignores its similarly restrained role under the system of separated powers.
Article III of the Constitution creates “one Supreme Court,” but is silent on the number of justices or the scope of their authority to hear appeals. Congress gets to determine both by statute. Congress is also responsible for establishing the “inferior courts,” which it did in the first Judiciary Act of 1798.
The power of all federal judges — both on the Supreme Court and the courts of appeals (the intermediate federal courts) and in the district courts (the trial-level courts) — is confined to deciding “cases,” meaning distinct disputes brought by feuding parties over a concrete injury claimed by the plaintiff. No federal court, including the Supreme Court, is supposed to make laws out of whole cloth. That is Congress’s job.
In other words, there is nothing magically different about Supreme Court justices as compared to lower federal courts regarding their power to decide “cases” under Article III as an initial matter. In Marbury v. Madison, the Supreme Court ruled in 1803 that it has the ultimate constitutional prerogative to review the other branches’ actions for adherence to the rule of law. But with rare exceptions, Article III confines its power to hearing appeals from other courts: “The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” An appeals court traditionally operates by carefully reviewing the record from the court below. In the Wilcox decision, the majority perfunctorily cast that part aside.
As Professor Chemerinsky — a giant in the world of constitutional scholarship — underscores, House Republicans’ stealth effort to disable lower federal courts from enforcing injunctions in deference to a single man is a red-light moment for democracy. If the Supreme Court continues to shrug off its own colleagues’ attempts to check the presidency, it could mean a checkmate on the Constitution itself.
Kimberly Wehle is author of the book “Pardon Power: How the Pardon System Works — and Why.”