How courts are calling the shots on presidential power

The first few weeks of the Trump Administration have been very busy, both inside the White House, through government departments and agencies, and lastly in predictable fashion in the Courts as opponents seek to challenge the unilateral executive actions of the new administration. Although the administrations of both parties use executive action to accomplish certain goals, this time feels a little different.

An independent agency established by Congress during the Kennedy Administration, called USAID or U.S. Agency for International Development is one many Americans (until recently) have probably never heard of, but during multiple deployments to Iraq and Afghanistan, I became very familiar and worked side by side to establish their goals. It is not exclusive but can be fairly described as the primary vehicle to provide foreign aid and assistance to nations throughout the world. Its budget can be difficult to pinpoint but according to Pew Research, it spent $71.9 billion in Fiscal Year 2023.

Generally, USAID saw an increase in funding when the Ukraine War broke out in 2022. In the very first week of the administration, through Elon Musk's DOGE, USAID was purportedly shut down. As stated above, that particular action was challenged by opponents, and a Washington DC District Court Judge, Carl Nichols (who it is worth noting was appointed by President Trump in his first term) halted large swaths of the Administration's actions towards USAID.

On Feb. 9, 2025, Vice President J.D. Vance posted the following on X: "If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal. Judges aren't allowed to control the executive's legitimate power." It is further worth noting that the Vice President is a graduate of Yale Law School. So is his wife. She previously worked as an Attorney for Munger, Tolles and Olsen and is a California-licensed attorney who clerked for the Chief Justice of the United States, John G. Roberts.

VP Vance is of course not providing the legal defense for the administration, but his claim that our Courts lack the power to review executive actions was decided in the earliest days of our Republic. In the case of Marbury v. Madison (1803) 5 U.S. 137, Chief Justice Marshall wrote the following "The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present *174 case; because the right claimed is given by a law of the United States." Marbury @ 173-174.

This case is the bedrock of our jurisprudential system. It created the concept of "judicial review." Although CJ John Marshall was not the first Chief Justice of the US (he was actually the 3^rd), he held the job for 34 years, which is the longest-serving Chief Justice in our nation's history.

It is axiomatic that the lower courts can rule on actual cases or controversies, consistent with the United States Constitution and the laws passed by Congress and signed by the President. There is a political explanation of why the Trump Administration is doing all of its initial work through executive orders and little by Congress. The Republicans currently hold a scant 218-215 majority in the House. One that will soon narrow when a Republican from New York assumes the Ambassadorship to the United Nations.

In its first term, the Administration accomplished little via Congress, primarily a large tax cut. The only exception was in 2020 and there was bipartisan action on the Government's response to COVID. Nonetheless, governing by fiat and issuing executive orders to undo actions by previous Congresses is legally untenable, which is why Judges appointed by Reagan and Trump (as well as Democratic administrations) have been singularly ruling against the administration on requests for TRO's.

Getting back to USAID, it is not surprising they would be a target. Foreign Aid has for some time been controversial. Some of the projects in actual war zones, such as Afghanistan and Iraq that I personally saw raised even my eyebrows. They spent $30,000 to study the feasibility of building a walnut processing plant in Helmand, Afghanistan. The recommendation was against building the factory! I also saw them build medical clinics in rural Afghanistan. At the time 79 babies died there per 1,000 births, so in my view that project, although difficult, was meritorious.

I disagree with the administration's strategy. Legally, their actions must go through Congress to overturn federal law, or they must amend the Constitution for certain changes, which is an extremely challenging process. The founders deliberately made both routes difficult. If done legally, however, such actions are seen as legitimate. The VP's unitary executive theory is not a serious belief in our laws.