Executive Orders Halted: Are Judges Overstepping? | 3.23.25

Summary

Executive Orders Halted: Are Judges Overstepping?

Morning Wire Podcast – March 23, 2025

In this insightful episode of "Morning Wire," hosted by John Bickley and Georgia Howe, the focus is on the recent judicial interventions that have halted several executive orders issued by former President Donald Trump. The discussion centers on whether these judicial actions represent rightful checks on executive power or constitute overreach by the judiciary. The program features Ilia Shapiro, Director of Constitutional Studies at the Manhattan Institute and author of The Miseducation of America's Elites, providing expert analysis on the matter.

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Judicial Authority vs. Overreach

The episode begins with an overview of the recent court actions that have blocked Trump's executive orders, including the dismantling of USAID, the firing of thousands of government workers, and the ban on transgender individuals serving in the military.

John Bickley introduces the topic:

"Over the last few weeks, we've seen several district judges put a halt to some of President Trump's executive orders... Do these judges have this authority or is this judicial overreach?" ([00:03])

Ilia Shapiro responds by acknowledging the complexity of the issue:

"It depends... there have been more TROs... in these first eight weeks or two months of the Trump administration than we saw in all four years of President Biden." ([01:48])

He emphasizes that while some judicial interventions may be justified, others might overstep, particularly in cases involving temporary restraining orders (TROs) that are typically meant to be unreviewable on appeal.

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Analyzing Specific Executive Orders

1. Dismantling USAID

Shapiro discusses the legal battles surrounding the administration's efforts to cut funding for USAID. He notes that the Supreme Court's involvement has led to a more narrowed approach, allowing the administration to proceed with past contracts while blocking future funding cuts.

"Judge Ali on The District of D.C. said... you do have to pay for the work that was already done under valid contracts... That is effectively a win for the administration." ([05:47])

2. Deportations Under the Alien Enemies Act

The conversation shifts to Trump's use of the Alien Enemies Act to deport immigrants identified as criminals or gang members. Shapiro clarifies that the administration is engaging in a legitimate legal argument regarding presidential authority over national security and migration rules.

"It's simply a debate between Article 2 and Article 3 about the President exercising his authority over national security and migration rules." ([05:53])

3. Reinstating Fired Federal Workers

Addressing the order to reinstate 25,000 federal workers, Shapiro expresses uncertainty due to civil service protections but remains optimistic about the administration's position based on recent Supreme Court rulings.

"The president can fire the head of the Office of Special Counsel... it looks like the administration is on firm ground." ([07:13])

4. Ban on Transgender Service Members

Shapiro argues that courts typically grant the executive branch significant leeway in military matters. He suggests that the administration's justification—that transgender service members negatively impact military operations—may hold up under appellate scrutiny.

"Courts give a lot of leeway to the executive branch on regulating the military... the lower court's block will be reversed." ([08:19])

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Strategizing Future Executive Orders

When advising the president on structuring future executive orders to withstand legal challenges, Shapiro praises the Trump administration's meticulous legal preparation during the transition period.

"The executive orders have been very well lawyered... most of this, the administration is going to prevail." ([03:04])

He highlights the importance of strong legal foundations to prevent similar judicial setbacks in the future.

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Potential Legislative Actions and Judicial Reforms

The discussion touches on Florida Governor Ron DeSantis’s proposal to strip federal courts of their jurisdiction over executive orders. Shapiro believes such measures are unlikely to pass due to Senate filibuster rules but suggests alternative reforms, such as requiring a three-judge panel to issue nationwide injunctions.

"It's hard to see anything... passing a filibuster in the Senate... a three judge court necessary to issue a universal or national injunction." ([04:04])

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Escalation to the Supreme Court and Unitary Executive Theory

Shapiro anticipates that many of these legal battles will escalate to the Supreme Court, which has yet to rule on the substantive issues at hand. He explains that the core of the dispute revolves around the unitary executive theory, which asserts that the president should have control over the executive branch's functions.

"The Supreme Court has not actually decided the merits of any of these thorny issues... the Trump administration is really pushing the claim that the president... gets to control what it does." ([10:39])

Shapiro suggests that the Supreme Court may eventually uphold the Trump administration's stance on centralized executive power, especially if the administration continues to present strong legal arguments.

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Conclusion

The episode concludes with a reflection on the significance of these judicial interventions and their implications for executive power in the United States. Shapiro's insights provide a nuanced understanding of the legal battles between the Trump administration and the judiciary, highlighting the ongoing tension between different branches of government over executive authority.

John Bickley wraps up the discussion:

"Ilya, thank you so much for joining us." ([10:39])

Ilia Shapiro responds:

"My pleasure. Take care." ([10:42])

This episode of "Morning Wire" offers a comprehensive analysis of the challenges faced by the Trump administration in implementing its agenda through executive orders and the judiciary's role in checking executive power.

Transcript

[Unnamed Host]

Over the last few weeks, we've seen several district judges put a halt to some of President Trump's executive orders, including his dismantling of usaid, his firing of thousands of government workers, and his ban on people who identify as transgender from serving in the military. Do these judges have this authority or is this judicial overreach?

[John Bickley]

In this episode, we speak with the Manhattan Institute's Ilia Shapiro about the Trump administration's multi front battles with the courts. I'm Daily Wire Editor in Chief John Bickley with Georgia Howe. It's Sunday, March 23rd, and this is a weekend edition of Morning Wire.

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[John Bickley]

Joining us now to discuss the Trump team's legal battles is Ilya Shapiro, Director of Constitutional Studies at the Manhattan Institute and the author of the book the Miseducation of America's Elites. Ilia, thank you so much for coming on.

[Ilia Shapiro]

Sure, My pleasure.

[John Bickley]

Now, we've seen a flood of judges orders blocking the Trump administration's various attempts to enact his agenda on things like dismantling usaid, firing thousands of workers, banning trans identifying people from the military. First. Do these judges have the authority to impede the executive branch?

[Ilia Shapiro]

It depends. I mean, I'm sorry to can't generalize more than that. But the facts of the case and the specific legal authorities are different, as between DOGE cutting funding versus the president putting in new personnel policies for the military. But in general, what we've seen is a lot of judicial resistance, if you will, to the administration's actions. In fact, there have been more TROs, temporary restraining orders, and preliminary injunctions in these first eight weeks or two months of the Trump administration than we saw in all four years of President Biden. So I'm sure there are edge cases where the Justice Department or other administration lawyers are pushing through the envelope. Not just pushing the envelope, but In a lot of these cases, I think there is overreach, which doesn't mean that it's improper to go to court if you want to challenge something. But some of these rulings, and particularly issuing TROs which are supposed to be unreviewable on appeal, which is why the Supreme Court has had to get involved a couple of times, really are exceptional, let's say.

[John Bickley]

I'd like to get into some of those specific cases in a second. But before that, another kind of broad question. If you were advising the president, how would you counsel him on structuring future EOs to better protect them from legal challenges?

[Ilia Shapiro]

Well, the executive orders have been very well lawyered. I mean, I was very pleasantly surprised. I was expecting an onslaught, but it even exceeded my expectations. How well the administration and its lawyers, the transition team, used that period, the lame duck period, to prepare this stuff. And so ultimately, most of this, the administration is going to prevail, whether it's DEI or the energy drilling or, you know, these things that we've already mentioned, they're on pretty solid ground. And so we're kind of arguing around the, around the edges of whether that plane full of Venezuelan gang members had already left American territorial waters and whether that's legally significant. Things like that, you know, that's really where the real debate is. It isn't in the heart of the substance of executive power to affect the executive branch.

[John Bickley]

Got it. Now, one more general question. Florida Governor Ron DeSantis has suggested that Congress strip these federal courts of their jurisdiction. Is that truly an option on the table?

[Ilia Shapiro]

Well, it's hard to see anything of substance or of controversy passing a filibuster in the Senate. So practically it's dead in the water. I would like to see, for example, a three judge court necessary to issue a universal or national injunction or something like that, because it, it really is unseemly to have one judge or a handful of judges in places like Boston and D.C. and Seattle that are selected to be on the far left edge of the judiciary, more broadly controlling all of federal policy.

[John Bickley]

It's an intriguing suggestion. Let's go case by case. Now, Trump's actions against usaid, we've had legal pushback to that. Where does that case stand? Do you think that the Trump administration is ultimately going to win in terms of their cost cutting measures there?

[Ilia Shapiro]

Well, the one case that already made it to the Supreme Court, not on full briefing, I mean, this is all emergency stuff happening overnight and things like that was on the order. It was kind of a breathless order to require the government to pay millions and millions of dollars for USAID programs. And the appellate court stayed that. Then the Supreme Court got involved and the media narrative is that the administration lost at the court 5, 4. But really what the justices did was told the lower court to be more specific and narrow, which is what ended up happening. So the district judge, again Judge Ali on The District of D.C. said okay, you do have to pay for the work that was already done under valid contracts, which is different than the previous order which seemed to say that you can't cancel future work or future contracts. So already that is effectively a win for the administration.

[John Bickley]

How about deporting the illegals the administration says are criminals and gang members? Where does that battle stand?

[Ilia Shapiro]

Well, the invocation of the Alien Enemies act is a rarity in peacetime, not under wartime situations. But it doesn't mean that that's not the law on the books. And this is the argument over whether the administration's lawyers were in contempt by not forcing the plane to turn around. And they are pushing an aggressive but not fake spatially ridiculous or implausible or contemptuous evaluation of the law, meaning that the binding law is the order that the judge made in writing what's called a minute order, not what he may or may not have said in court and the minute order. And again, there's lots of citations that they present and explaining that the minute order did not require the plane to turn around or anything like that. It was affecting planes that hadn't left yet. So they are pursuing arguments that are perfectly valid and maybe you know, the judge or the on appeal the law might get changed, but they are not saying as has been misreported, that the administration is simply ignoring the court order or slow walking it or the lawyers didn't tell their political bosses what the judge said, anything like that. It's simply a debate between Article 2 and Article 3 about the President exercising his authority over national security and migration rules.

[John Bickley]

And what about the order to reinstate 25,000 fired federal workers? Do you think that's going to hold up?

[Ilia Shapiro]

There are civil service protections and it's unclear. I haven't drilled down in this particular case about whether those were followed. And there's different rules for those on probationary periods versus more veteran workers. In theory there are ways to have a reduction in force. It's not just a one way ratchet. And the government can never lay someone off unless they commit fraud or engage in malfeasance of some kind. But I just don't know whether they crossed all the T's and dotted the I's. What I do know is that in the case that has also made it to the Supreme Court on one of these emergency appeals, ultimately the lower courts ruled that the president can fire the head of the Office of Special Counsel. And that kind of ruling might affect these other lawsuits regarding members of the National Labor Relations Board, Federal Election Commission. Just today, he fired two members of the Federal Trade Commission. So those kind of high level heads of departments, heads of agencies. It looks like the administration is on firm ground.

[John Bickley]

Got it. Now, the ban on transgender, identifying service members in the military, again, there's been legal pushback to that. Where do you think that's going to land in the end?

[Ilia Shapiro]

Generally, courts give a lot of leeway to the executive branch on regulating the military. And the executive order said that people questioning their gender identity affects negatively the operations of the military, the ability to go to war. It's kind of bread and butter goals. If judges accept that explanation on appeal, which I think is more likely than not, then the lower court's block will be reversed. But that's where this lies. Is it a plausible explanation, or is it just irrational or bigoted action against people?

[John Bickley]

Yeah. Final question. Broadening out again. Do you believe most of these cases will end up escalating to the Supreme Court?

[Ilia Shapiro]

I think the court doesn't like having to intervene so often, and that's all of the justices all over the political spectrum, or however cautious they might be, what have you. And so far, they've been unsuccessful in preventing the lower courts from issuing orders that are going to instantly be appealed and get back on the Supreme Court's doorstep. So I think the justices are really in a bind now. Are going to have to issue some guidance in one of these cases about universal injunctions, about temporary restraining orders, all of this procedural stuff, because that's where the skirmishing has been when it gets to the Supreme Court. The Supreme Court has not actually decided the merits of any of these thorny issues. What we're seeing is a battle over what's known as unitary executive theory, which isn't so much about the scope of executive power, you know, how much power the executive has, but about who controls it. And so the Trump administration is really pushing the claim that the president, as the head of the executive branch, gets to control what it does. You know, he's not trying to invalidate congressional legislation or rewrite it. He's not trying to ignore judicial rulings, but he's saying, look, whether it's the military, whether it's reorganizing government, shifting USAID functions into the State Department or shifting Education Department functions to the treasury, what have you. Presidents should have leeway over that. And we could see if push comes to shove at the Supreme Court on the merits, as with the issue of appointing heads of so called independent agencies, I think if the opposition to Trump continues to push these kinds of cases, the Supreme Court is more likely than not to uphold the Trump administration's push for a more unitary executive.

[John Bickley]

Got it. Ilya, thank you so much for joining us.

[Ilia Shapiro]

My pleasure. My pleasure. Take care.

[John Bickley]

That was the Manhattan Institute's Ilia Shapiro, author of the Miseducation of America's Elites. And this has been a weekend edition of MORNING wire.