Remember How The Court Kept Jamming Biden's EO's? Bet They'll Do That To Trump Too, Right?

It's a MAJOR QUESTION how they'll call those balls and strikes!

Interior of the US Supreme Court. Photo by Carol M. Highsmith, 1980, cropped. Library of Congress, public domain.

As you may have heard, this Donald Trump guy who’s sitting in the White House has been spewing out executive orders like he has a bad case of decreearrhea, and a bunch of them, on top of being weak and runny, are also of very dubious legality, by which we mean they’re facially illegal as shit.

Already, a couple of Trump’s EOs have been put on hold by federal judges, which is nice, because as the judge in the first of those cases said — just two and a half days after Trump tried to eliminate the 14th Amendment’s guarantee of birthright citizenship — the order was “blatantly unconstitutional,” and stood out for being the clearest question he could remember handling in 40 years as a judge. And that was only the first of five lawsuits against the order.

The other big judicial win against Trump came in response to the Office of Management and Budget’s flatly unconstitutional attempt this week to freeze federal funds for programs Trump dislikes, and which various executive orders wished into the statutory cornfield. The order was issued late Monday night, and by Tuesday afternoon, a judge had already blocked it, because Congress has the power of the purse and Trump can’t get away with being a pursey-grabber.

The OMB then rescinded the order Wednesday afternoon in an attempt to make the lawsuit go away, but the White House then announced that only the memo was rescinded, while the actual freeze remains in place. That was a very tricksy trick aimed at making the lawsuits go away! But it didn’t fool the judge in a separate case against the funding freeze, who called the pretended recission a “distinction without a difference” and said he too would block the freeze just to be sure it fuckin’ stayed blocked.

So far, so good, but we do find ourselves wondering whether the courts will continue doing their jobs and actually protecting Americans from Trump’s power grabs, or if we’re going to see several replays of last year’s “presidential immunity” case, where every court up to the federal appeals level laughed the case out of court and said hell no a former president isn’t above the law, until the Supreme Court decided its only job was to explain exactly how far above the law Donald Trump could be.

Specifically, we’ve been thinking lately about the odds that courts — especially the Supreme one — will hold Trump to anything like the scrutiny that they applied to Joe Biden, whose policies were routinely kicked to flinders on the grounds that he had allegedly exceeded his authority under one law or another, let alone whether he had allegedly violated the Constitution, which tended not to be the issue with his executive actions because Joe actually knew a thing or two about “Constitution.” Heck, we won’t even consider some of the Supremes’ worst recent decisions, like throwing out Roe.

According to various courts, Joe Biden supposedly exceeded his authority as president when he or his administration:

• Paused oil leases on federal land his first week in office, because the pause was outside the bounds of leasing plans approved by Congress.

• Required workers at large companies to be vaccinated against COVID, or to agree to wear a mask and be tested regularly for the virus. The Supremes threw out the requirement in an unsigned “shadow docket” ruling that said OSHA supposedly exceeded the authority of the workplace safety law it relied on in writing the rule.

• Tried to extend the CDC’s pandemic freeze on evictions in 2021, while the pandemic was still going strong. In another unsigned “shadow docket” ruling, the Supremes decided the CDC exceeded its authority to protect public health, because the law the agency cited only applied to pest control, not pandemics.

• Tried to forgive up to $20,000 per borrower in student loan debt, because the order supposedly exceeded the authority of the HEROES Act.

• Created — following the guidelines in that previous decision, even! — the SAVE plan for income-based repayment of loans, because the Eighth Circuit Court of Appeals said it supposedly violated the “major questions doctrine” that John Roberts pulled out of dead Antonin Scalia’s ass in 2022. While it was at it, the Eighth Circuit also put the kibosh on all other income-based repayment plans except the Public Service Loan Forgiveness plan, because it was indeed passed by Congress in 2007 with guidelines specific enough to satisfy courts. So far.

• Tried to keep businesses from suppressing wages through “non-compete agreements” that, for instance, restricted the ability of fast-food workers from getting better jobs at other fast-food restaurants. A federal judge in Texas killed that one, deciding that the Federal Trade Commission had overstepped its authority to prevent monopolistic practices.

• Expanded rules to make sure more people on salary were entitled to overtime pay, because supposedly the rule overstepped the Department of Labor’s authority.

• Protected undocumented spouses of American citizens from deportation. In August 2024, a federal judge in Texas ruled that the regulation supposedly exceeded Biden’s authority to set immigration priorities and had instead rewritten immigration law without Congress.

• Expanded the interpretation of Title IX, which bans sex discrimination in education, to protect LGBTQ+ students as well. This one’s fresh — a district court in Kentucky threw out the rule earlier this month, finding that the rules “exceed the [Education] Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action,” and also were icky.

There are probably others, but those are some of the big ones, almost all of them turning on what the courts decided was allowed under various existing statutes, with constitutional questions arising only in a few cases (and on the SAVE student loan plan, invoking the completely bogus and arbitrary “major questions” doctrine, which you’ll never convince us is remotely valid, so there).

But it’s a whole new day and a whole new administration now, and Donald Trump, with Project 2025 in his pocket and his right hand giving a Nazi salute, is now acting like he can ignore all sorts of laws as long as he insists he has the authority to do so. We can only hope that the courts will be at least half as “tough” as they were with Biden. The first two weeks have each seen Trump EO’s put on hold because they farted loudly in the face of the Constitution. But it may be at least another two or three weeks before any of Trump’s excesses are so extravagant that they get to the Supremes.

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