Washington Wednesday: Executive orders face gridlock

NICK EICHER, HOST: It’s Wednesday the 30th of April.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

LINDSAY MAST, HOST: And I’m Lindsay Mast.

Time now for Washington Wednesday.

In 1933, President Franklin Delano Roosevelt addressed the nation, and came up with a measure of progress still in use today: the first 100 days. Reenactment audio here from LibriVox:

LIBRIVOX: I think that we all wanted the opportunity of a little quiet thought to examine and assimilate in a mental picture the crowding events of the 100 days which had been devoted to the starting of the wheels of the New Deal.

EICHER: FDR kicked off his presidency by calling Congress in for a three-month special session. He signed 15 bills into law and issued 99 executive orders. Ever since, presidents have been measured against that rapid start.

But different presidents bring different priorities, FDR was about expanding government, President Donald Trump is using his second, first 100 days to scale it back.

MAST: As of today, Trump has signed nearly 140 executive orders, cut federal jobs, revoked funding, and closed offices. He’s also ramped up deportations of illegal aliens and imposed tariffs.

But in 100-days he’s found himself tangled up by some 200 lawsuits, prompting a debate over the separation of powers.

Here’s WORLD’s Washington Bureau reporter Carolina Lumetta.

CAROLINA LUMETTA: President Trump’s executive actions have reduced and reshaped the federal government, but much on his to-do list is tied up in the courts.

CBS NEWS: In a 7-2 decision, justices temporarily blocked the deportation of Venezuelan men held by immigration officials in North Texas.

CBS 6: Another move facing legal backlash: the administration's federal grant freeze. The order, resulted in two lawsuits and was temporarily blocked just moments before it was set to go into effect.

ABC NEWS: And President Trump is criticizing activists and judges who he says are trying to stop his efforts to investigate fraud, waste and abuse.

District judges across the country have issued either nationwide injunctions or temporary restraining orders to block the administration’s changes while legal challenges play out in court. Lael Weinberger, a lawyer in Washington and a fellow at Stanford Law School, says the second Trump administration has been more strategic and fast-paced than the first.

WEINBERGE: I think it’s certainly beyond doubt that these are legally aggressive executive orders. And exactly where that line is between legally aggressive and legally specious is going to be very divisive among many lawyers that I know and legal academics.

Judicial injunctions have been an obstacle for several administrations. Former President Barack Obama complained when courts blocked his plan to expand the Deferred Action for Childhood Arrivals, or DACA, program. And judges issued 14 universal injunctions on policies from former President Joe Biden. Now, with at least 15 nationwide injunctions against the Trump administration, Republicans are looking for ways to rein in district judges.

ISSA: We are here today because a major malfunction in the federal Judiciary has been recognized by both Republicans and Democrats.

A House Judiciary subcommittee held a hearing earlier this month on judicial overreach. Chairman Darrell Issa of California said that the judges issuing injunctions are activists usurping presidential power.

ISSA: These rogue judge rulings are a new resistance to the Trump Administration and the only time in which judges in robes in this number have felt it necessary to participate in the political process rather than to participate in the Article 3 powers given to them both by the Constitution and by statute.

The House passed Issa’s bill to restrain district judges’ ability to issue nationwide injunctions. Were it to become law, judges would only have authority to issue an injunction for their jurisdiction or plaintiff. Legal experts say this is an area that could use some direction from the Supreme Court.

SHAPIRO: Trump has faced more judicial action against him, more temporary restraining orders, injunctions, than any other president in the first hundred days.

Ilya Shapiro is a former Supreme Court clerk and the director of constitutional studies at the Manhattan Institute.

SHAPIRO: A large part of that is judges going beyond their remit. Part of that is the Supreme Court simply not giving guidance to lower courts.

Lower courts typically use an injunction to preserve the status quo while the case is being decided. But injunctions are subject to appeal, which has flooded the appellate courts with cases. Some judges have instead opted for temporary restraining orders to halt the Trump administration. These orders cannot be appealed.

SHAPIRO: But there needs to be a standardized situation there also to deal with the the forum shopping that we've seen from presidents of both parties. So when a Democrat's in the White House, challengers file in Texas, when a Republican's in the White House, they file in Boston or Seattle or D.C.

Other legal experts disagree that the courts are the problem here. During the House hearing, University of Pennsylvania professor Kate Shaw argued that Trump is receiving so much pushback from the courts because his actions are illegal.

SHAW: The lawsuits have been brought and have overwhelmingly succeeded because many of the challenged actions have been taken without regard for and often with outright contempt for both statutes and the Constitution

Many of the executive orders have simply reversed Biden administration orders, but others drastically change the nation’s domestic and foreign policy. This includes closing USAID and imposing tariffs. That, Shaw argued, infringes on Congress's responsibility.

SHAW: If president Trump wished to reshape or even eliminate many federal agencies or dramatically reduce government expenditures on foreign aid or eliminate job protections for federal workers or roll back Federal privacy protections, working with his many allies in Congress, including those on this committee, was the constitutionally permissible way to do that. Instead he has ignored the laws passed by Congress and the Constitutional rules that give Congress primacy in lawmaking.

Take immigration policy for example. President Trump campaigned on enforcing the laws on the books in order to secure the border and deport illegal immigrants. But it’s hard to do that and meet due process requirements if 15 million immigrants need separate hearings. Here’s Weinberger again:

WEINBERGER: The entire major plank of Trump's policy agenda will then be bogged down in years of individualized litigation. So I think how to how to work through both of these understandable issues is one of the big challenges for the courts dealing with the illegal immigration deportations.

Last month, Trump invoked the Alien Enemies Act to deport hundreds of illegal immigrants…without court hearings. But a man named Kilmar Abrego Garcia, had already received an order saying he could be deported, but not to his home country of El Salvador. Immigration officials missed that detail when they loaded Abrego Garcia onto a plane to Central America.

Washington DC Judge James Boasberg ordered the Trump administration to halt deportation flights and return Abrego Garcia. The White House said it could not comply because the plane was no longer in the United States. Instead, President Trump attacked the judge’s decision. Here he is on Fox News.

TRUMP: We have bad judges we have very bad judges and these are Judges that shouldn't be allowed I think they I think at a certain point you have to start looking at what do you do when you have a rogue judge?...

The Supreme Court weighed in on Boasberg’s decision and ordered the Trump administration to facilitate Abrego Garcia’s return. The Trump administration has argued that there’s no definition for facilitation and that they are not asking El Salvador for Abrego Garcia’s release.

Constitutional scholar Shapiro says disagreeing with judges is one thing, but attacking their decisions is another.

SHAPIRO: This attacking individual judges, even if it's unseemly, politicians do it. somewhat different is the administration's kind of public relations. But in terms of the PR messaging, it was mocking the order a little bit. that I wouldn't advise as good legal strategy because the Supreme Court, I think, trusts the administration less than it did 50 days ago or at the beginning of this second Trump administration.

Trump’s call for impeaching judges drew a rare written rebuke from Supreme Court Chief Justice John Roberts.

The issue could come to a head next month when the Supreme Court hears a case about injunctions blocking another one of Trump's executive orders. On Day 1, Trump signed an order to end birthright citizenship for children of immigrants without permanent legal status. While it might not rule on the merits about citizenship, the Court consolidated decisions by three districts that issued injunctions on Trump’s order. The question at hand: how should lower court's use injunctions?

SHAPIRO: I'm hoping that finally the justices are going to be giving guidance and and reining in the lower courts. When is it appropriate to issue a nationwide injunction rather than one that's simply binding on the parties in front of you? What is the procedure?

Reporting for WORLD, I’m Carolina Lumetta.

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