Published February 11, 2025
Ever since President Donald Trump returned to office like a whirling dervish, issuing sweeping and potentially transformative orders about the management of the executive branch, elected Democrats have seemed incapable of stopping him. Lucky for Democrats, it seems that federal trial judges are willing to try.
This past week district judges have issued sweeping temporary restraining orders (TROs) against the Trump administration, purporting to stop various agencies and officers from executing the president’s orders. The tactic of judges granting unreviewable relief to manage the internal affairs of the executive branch is a shocking escalation in judicial lawfare.
Unless the sober appellate courts — in particular the Supreme Court — get the district courts in their appropriate constitutional lane, the executive branch will feel it has no choice but escalate in turn to protect the president’s prerogatives.
After Trump issued his orders, state AGs, liberal interest groups, and labor unions got their ducks in a row and sued. In turn judges in Boston, Seattle, Providence, New York, and D.C. have issued TROs against the administration. The cases have involved the “fork in the road” buyout, the recall of foreign service officers, the Treasury Secretary’s access to information, birthright citizenship, the new NIH funding formula, categorical payment freezes, and the aborted OMB funding freeze. Surely more are coming.
The most remarkable thing about this activity is that the judges are issuing TROs. These are the most extraordinary form of relief in the judiciary — sometimes, even here, granted before the defendant has an opportunity to argue his case. Because they are supposed to be temporary and unusual, they also can’t be appealed. If you don’t like a TRO all you can usually do is seek a writ of mandamus, itself an extraordinary form of relief that is rarely granted.
If these were preliminary injunctions, the government could appeal and seek an administrative stay — that is a pause of the order until the appeal has been resolved. In multimember circuit courts the odds of getting an administrative stay are considerable, which would allow the president to carry out his initiatives while the litigation proceeds.
In other words, by issuing TROs and removing an avenue for appeal, these judges aren’t just ruling against Trump, they’re also making sure that he is stuck with the order for as long as the trial judge sees fit.
Even the much-maligned Texas district judges didn’t behave like this under Biden. Would they rule against him and enjoin his initiatives? Sure. But they often went so far as to keep their own opinions from going into effect to give Biden time to appeal and seek a stay. That judicial courtesy is nowhere in sight today.
What makes it worse is how many of these TROs implicate core executive power. Cases like the USAID personnel reforms in D.C., or the fork in the road in Boston, or Treasury access to information in Manhattan, are cases about how the executive branch shall function as a matter of administration and personnel. These aren’t suits challenging rules under the Administrative Procedure Act, where Congress prescribed a justiciable process for some agency actions. Nor are these three cases suits about enforcement policies which implicate the rights of third parties against the government. They’re suits about the inner workings of the executive branch.
Generally questions of bureaucratic management are dealt with ex post and not ex ante. That is, you remedy legal violations in this context after they happen; you don’t prevent them. The legal structures in place allow someone wrongfully terminated to be reinstated or given back pay and they don’t contemplate judges preventing them from being fired. There’s a whole process for adjudicating personnel matters via the Civil Service Reform Act that goes through the Merit Systems Protection Board — not through trial judges. In fact, the D.C. Circuit has held that federal district courts lack jurisdiction over “personnel matters.”
But some of these orders go well beyond interfering with the executive by misapplying civil-service protections and in fact strike at the heart of Article II of the Constitution. Restricting the Senate-confirmed Treasury Secretary from reviewing information within his agency’s control fundamentally frustrates his ability to “take care” that the laws be enforced. It’s a staggering intrusion on presidential power from the judiciary.
Unfortunately we don’t need to look far to see how this will play out. Congress regularly attempts to interfere with core executive functions, principally by trying to compel the contents of privileged deliberations. More often than not, courts stay out of these disputes between Article I and Article II, leaving Congress to attempt to enforce its own demands by holding executive-branch officials in contempt. And then nothing happens. It’s literally a joke: when the House Judiciary Committee voted to hold him in contempt, then-Attorney General Bill Barr saw Nancy Pelosi at event and asked her if she brought her handcuffs.
If courts continue to enjoin core executive activity without the availability of review, the executive branch will start treating these TROs like it treats congressional subpoenas: worthy of some respect but, in the end, not superseding core executive power. And if Secretary Scott Bessent is therefore held in contempt, Attorney General Pam Bondi won’t be sending her Marshals to arrest him any more than Barr sent his Marshals to arrest himself.
The Supreme Court needs to put a stop to this. At some point the Department of Justice will find a way to get these orders in front of the justices, perhaps through disfavored mechanisms like mandamus, and certainly on the emergency or “shadow” docket. When it does, the Court needs to send a strong message to trial judges: the president controls the executive branch, not you. If they don’t, they’re inviting a constitutional crisis — one in which their branch is the aggressor.
Michael A. Fragoso is a fellow at the Ethics and Public Policy Center in the Constitution, the Courts, and the Culture Program, where he writes and speaks on issues relating to the law, the federal judiciary, and Congress. His writing has appeared in The Wall Street Journal, National Review, The Harvard Journal of Law & Public Policy: Per Curiam, and elsewhere.
