Comment: This crisis can’t be left to courts alone

By Maya Sen / For The Conversation

State governments, community groups, advocacy nonprofits and regular Americans have filed a large and growing number of federal lawsuits opposing President Donald Trump’s barrage of executive orders and policy statements. Some of his actions have been put on hold by the federal courts, at least temporarily.

As a scholar of the federal courts, however, I expect the courts will be of limited help in navigating through this complicated new political landscape.

One problem is that the U.S. Supreme Court in recent years has moved sharply to the right and has approved of past efforts to expand the powers of the presidency. But the problem with relying on the courts for help goes beyond ideology and right-leaning justices going along with a right-leaning president, as happened in Trump’s first term.

One challenge is speed: The Trump administration is moving much faster than courts do, or even can. The other is authority: The courts’ ability to compel government action is limited, and also slow.

And that doesn’t even factor in statements by Trump, Vice President J.D. Vance and “special government employee” multibillionaire Elon Musk. All three have indicated that they are open to ignoring court rulings and have even threatened to seek the impeachment of judges who rule in ways they don’t like.

Speed: Musk has been put in charge of White House efforts to cut government services, both in spending amount and reach.

Constitutional law is clear: The executive branch cannot, on its own, close or shut down a federal agency that has been established by Congress. That is Congress’ job. But Trump and Musk are trying to do so anyway, including declaring that the congressionally established U.S. Agency for International Development will be shut down and turning employees away from the agency’s offices in Washington, D.C.

The administration’s strategy, it seems, is the longstanding tech-company mantra: “move fast and break things.” The U.S. courts do not — and by design cannot — move equally quickly.

It can take years for a case to wind its way through the lower courts to reach the U.S. Supreme Court. This is by design.

Courts are deliberative in nature. They take into account multiple factors and can engage in multiple rounds of deliberation and fact-finding before reaching a final ruling. At every stage, lawyers on both sides are given time to make their cases. Even when a case does get to the Supreme Court — as many of these lawsuits likely will — it can take months to be fully resolved.

By contrast, Trump’s and Musk’s actions are happening in a matter of days. By the time a court finally resolves an issue that happened in late January or early February 2025, the situation may have changed substantially.

For an example, consider the effort to shut down the U.S. Agency for International Development. In the space of a week, the Trump administration put most of USAID’s workers on administrative leave and halted USAID’s overseas medical trials, which included pausing potentially lifesaving treatments.

As of this writing, a district judge has temporarily blocked the order putting USAID workers on leave. But even if the courts ultimately conclude several months from now that the Trump administration’s actions regarding USAID were unlawful, it might be impossible to reconstitute the agency the way it used to be.

For instance, many workers may have been demoralized and sought other employment. New personnel would have to be recruited and trained to replace them. Contracts that were terminated or invalidated or expired would have to be renegotiated. And the countries and communities that had received help from USAID might be less committed to the renewed programs, because of concerns services could be cut off again.

Breadth: When Republicans disagreed with any of Joe Biden’s executive actions — for example, his student debt forgiveness plan — they went to federal court to obtain nationwide injunctions stopping the implementation of the plan.

But injunctions will not be as helpful given Trump’s recent playbook. A court blocking one order isn’t enough to stop the administration from trying different tactics. In 2017, courts blocked the first two versions of Trump’s ban on travel to the U.S. from majority-Muslim countries; but ultimately allowed a third version to take effect. And if an attack on one agency is blocked, the administration can try similar — or different — tactics against other agencies.

The strategy of moving fast and breaking things is successful if the other side — or even the process of repair — can’t keep up with all the different strategies. Courts can be part of the strategy to preserve the Constitution, but they cannot be its only defenders.

Authority: Researchers have argued that court-issued injunctions mostly work to stop the government from doing something, not to compel the government into doing something. Judges are already expressing concern that the Trump administration may fail to comply with orders to stop funding freezes.

For instance, a federal district judge in Massachusetts has ordered the government not only to refrain from implementing changes to federal research grant funding but to provide evidence to the court that it was complying with the court’s order, immediately and every two weeks until the case is decided.

Another federal judge has already found the administration failed to abide by a court order; but so far has not imposed any consequences on Trump, the administration or other officials.

It’s unclear whether Trump would obey Supreme Court rulings against him, either. On the campaign trail, Trump’s running mate J.D. Vance said, “When the courts stop you, stand before the country like Andrew Jackson did and say, ‘The chief justice has made his ruling, now let him enforce it.’” He also recently remarked that “Judges aren’t allowed to control the executive’s legitimate power,” hinting at strong opposition to rulings the administration disagrees with.

All this doesn’t mean the courts are useless, nor that people shouldn’t sue to challenge actions they deem illegal or unconstitutional. The courts — and the Supreme Court in particular — exist in part to arbitrate power disputes between Congress and the presidency. As Chief Justice John Marshall said in his landmark 1803 Marbury v. Madison ruling, “It is emphatically the province and duty of the judicial department to say what the law is.”

But the courts alone will not be sufficient. The courts are like an antibiotic on a cut, helping healing and staving off further infection. They cannot keep a grievously wounded patient alive. For this, a robust political strategy is necessary. It is in all Americans’ hands collectively to make sure that the constitutional structure is not just enforced, but also sustained.

Maya Sen is a professor of public policy at Harvard Kennedy School. This article is republished from The Conversation under a Creative Commons license.