A week after Donald Trump entered the White House for the first time in January 2017, he signed executive order 13769, known as the Muslim travel ban, barring entry to the US for refugees and immigrants from seven Muslim-majority countries.
Mayhem ensued. Protests erupted in airports. Panic spread around the world.
Within 24 hours it was blocked.
“There is imminent danger that there will be substantial and irreparable injury to refugees and other individuals from nations subject to the order,” a federal district judge ruled.
That was the start of an epic tug-of-war between Trump’s new presidency and the courts. Judges from Hawaii to Maryland stepped in to halt the ban, prompting its architect, the far-right immigration hardliner Stephen Miller to accuse them of “judicial usurpation of power”.
The order had to be written three times before it could satisfy even the increasingly rightwing US supreme court, losing 18 months in the process.
In nine weeks’ time Miller will be back in the White House as deputy chief of staff for policy, carrying with him an even more extreme plan for the largest domestic deportation effort in US history. The billion-dollar question is, will the courts let him this time?
“The second Trump administration is going to pose the federal judiciary with huge challenges,” said Lia Epperson, a constitutional law professor at American University. “Trump is going for extreme measures, and that will test the balance of power between branches of government over issues like immigration, free speech, and many more.”
Trump has already made clear, through his own policy agenda and in the gargantuan roadmap to a second term produced by his allies, Project 2025, that he intends to be more aggressive and radical this time. His flurry of cabinet and key federal agency appointments underline the point.
Matt Gaetz, the president-elect’s choice for US attorney general, has provoked fears that the justice department will be weaponised to go after Trump’s political enemies. The choices of the hardline South Dakota governor, Kristi Noem, for homeland security secretary and the Fox News host Pete Hegseth for defense secretary give heft to Trump’s intention to use emergency powers and the US military to implement the mass deportations.
“He is creating a cabinet of loyalists who will be in lock step with his agenda,” Epperson said.
Trump will arrive back in the Oval Office emboldened by the gift that the supreme court bestowed on him earlier this year: broad immunity from criminal prosecution for any of his official acts. The protection, awarded in a July ruling, could have some unexpected consequences.
At its most dystopian, Trump might read the justices’ edict as giving him carte blanche to defy their very own orders.
“One of the things we don’t know yet is what would happen if Trump defied judicial orders from the supreme court, claiming the immunity granted to him by the very same justices,” said Professor Rachel Moran of Texas A&M University school of law.
Another major shift in Trump’s favour is that during his first term he managed to push the federal judiciary drastically to the right. The 6-to-3 supermajority of the supreme court was forged by Trump’s appointments of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
The lower courts were also transformed by the 242 judges who he assigned to district, appeals and other federal courts. If Trump keeps up that frenetic pace over the next four years he will succeed in appointing more than half of all federal judges.
Among his first-term appointments were 54 appeals court judges – second only to supreme court justices in the power they wield. And of those, Trump placed no fewer than 10 judges on the 29-strong ninth circuit court of appeals in San Francisco, which is traditionally seen as a liberal bastion.
That in itself could be significant over the next four years. During Trump’s first term, the ninth circuit was by far the most popular route through which to challenge the administration.
Now, though, the court will be less attractive to those seeking to rein Trump in, given the stamp he has already put on its ideological balance.
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Meanwhile, Biden is scrambling to complete as many judicial approvals as he can before he leaves office, and has already confirmed 215. That will restore some equilibrium, but it will not erase the fact that Trump will begin his second term facing a far more friendly judiciary than in his first.
“The proportion of appointees who might be sympathetic to his administration has grown, and that means they are likely to be a less effective check on his power,” Moran said.
‘He knows how to do it, and is better prepared’
It wasn’t just the Muslim travel ban that got embroiled in the courts during Trump 1.0. Several of his signature policies, including family separation of undocumented migrants at the Mexican border and inserting a citizenship question in the US census, were stymied.
A study by the non-partisan thinktank the Institute for Policy Integrity, comparing how successive administrations fared when they introduced major new rules, found that the Trump administration was challenged legally at a far higher rate than any previous administration going back to Bill Clinton in the 1990s. When cases got to court, Trump’s record was even more abysmal.
He lost 57% of the time. That was dramatically worse than Barack Obama’s average across his two terms – 31%.
“The process of getting new rules out was flawed in many cases, as was the supporting analysis – so when they showed up in court they were getting dinged a lot,” said Don Goodson, the institute’s deputy director.
The travel ban got such a beating in federal courts in part because Trump’s White House showed a disdain for basic procedural guardrails designed to ensure that the government acts in rational and beneficial ways. Miller and Steve Bannon, Trump’s then chief strategist – “my two Steves” as he affectionately dubbed them – overruled experts in the Department of Homeland Security and ignored the oOffice of legal counsel, which is normally routinely consulted.
A similar dismissive attitude was shown across the Trump administration towards basic requirements set out in the Administrative Procedure Act, such as the need to give the public a chance to comment on all policy proposals. Those guardrails are still in place, which carries a warning for Trump and team.
Should they show as much disregard for the rules as they did last time, they are likely to suffer another bloody nose. On the other hand, Trump now has the benefit of experience.
“This is not his first rodeo. He knows how to do it, and is better prepared,” Epperson said.
Epperson sits on the national board of the American Civil Liberties Union (ACLU), which was at the forefront of the fight against the Muslim travel ban. The ACLU filed 434 actions against the first Trump administration, and is already gearing up to be similarly adversarial come January.
“Litigation is going to be critical,” Epperson said. “Will there be 100% wins in cases protecting civil rights and liberties? No. But will there be a good chance that the courts serve as one of several lines of defense? Yes.”
