WASHINGTON – Call it the “trust me” presidency.
As President Donald Trump embarks on a contentious overhaul of the federal government, explanations for the changes are in short supply. In one legal case, Justice Department lawyers defending Pentagon restrictions against transgender troops told a judge she should defer to the military on setting policy.
In another case, which challenges the deportation of alleged Venezuelan gang members under the Alien Enemies Act, government lawyers refused to tell a judge how many people have been removed − even as El Salvador’s president posted it on social media.
In the dismantling of the U.S. Agency for International Development, government lawyers and other officials contend Trump‘s billionaire adviser Elon Musk had no oversight of the changes. But a judge ruled otherwise – based on Trump’s and Musk’s statements and social media posts.
The cases are part of a growing constitutional conflict between Trump’s administration and judges presiding over challenges to his government overhaul. Judges have already questioned the accuracy of information the Trump administration provides in court.
Trump and Musk contend the new GOP administration is the most transparent in history for announcing agency overhauls and charting savings from spending cuts. As they push ahead, both have called for the impeachment of judges who rule against them.
The impeachment chatter brought a rare rebuke from Supreme Court Chief Justice John Roberts, who may eventually preside over the disputes and in a significant opinion last summer curbed the federal government’s deference to agency officials and their expertise in writing regulations.
“Across a whole number of those executive orders, the government has said, ‘Just trust us,’” Carl Tobias, a law professor at the University of Richmond, told USA TODAY. “I think it’s very basic in the Constitution that the judges need to have the facts to interpret the law that applies. It implicates questions of separation of powers and checks and balances, those kinds of issues.”
The Pentagon’s updated policy on transgender troops has sparked one of the most fiery clashes between the Trump administration and the courts.
Trump signed an executive order recognizing only two sexes. Defense Secretary Pete Hegseth adopted a policy to stop recruiting transgender troops and expel the ones who don’t wear the uniform and live in the barracks of their sex assigned at birth.
A group of decorated transgender troops fought the policy in federal court. U.S. District Judge Ana Reyes said the military had no data or analysis to justify Hegseth’s declaration that transgender troops lack warrior ethos, are liars, lack integrity and fail to meet health requirements after they served four years during the Biden administration.
“I think at the end of the day we’re asking you to defer to the military’s judgment,” Justice Department lawyer Jason Manion told Reyes at a March 12 hearing. “That includes predictions.”
Reyes blocked the policy while the case is litigated.
“Yes, the court must defer,” Reyes wrote. “But not blindly.”
Tobias Wolff, a law professor at the University of Pennsylvania, told USA TODAY that courts sometimes defer to political branches in decisions about the military or immigration or national security. But he said those situations are limited and the defense almost never absolute.
“I think it is fair to say that the current administration is being particularly aggressive in making arguments that the federal courts should not second-guess executive decisions relating to national security and border control, but we have heard these arguments before and the Supreme Court has usually found that courts must also play a role,” Wolff said.
The growing conflict between Trump’s executive branch and the judiciary comes a year after the Supreme Court overturned a 40-year precedent that held courts should defer to agency expertise in interpreting ambiguous federal laws. The doctrine was called Chevron deference after the 1984 ruling in Chevron U.S.A. v. Natural Resources Defense Council.
Under the Administrative Procedure Act, a person or group could try to overturn a federal agency’s regulations if found to be “arbitrary” or “capricious” or “in excess of statutory jurisdiction, authority, or limitations.” Courts tended to side with agencies if the regulations were deemed reasonable.
But the Supreme Court is increasingly skeptical of regulatory power and curbed that authority in June 2024, ruling against the Biden administration and moving the interpretation of laws back squarely toward the courts. Trump has moved to reduce government regulation through executive orders
Chief Justice Roberts cited the high court’s seminal 1803 decision in Marbury v. Madison that established judicial review of the law by ruling it “is emphatically the province and duty of the judicial department to say what the law is.”
“Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” Roberts wrote for a 6-3 majority in the case called Loper Bright Enterprises v. Raimondo. “Courts do.”
Justice Department lawyers have refused to disclose much about deportation flights since Trump ordered the removal of alleged members of Venezuela’s crime gang Tren de Aragua under the Alien Enemies Act, which hastens removals without a court hearing. Trump has also declared the gang a foreign terrorist organization.
U.S. District Judge James Boasberg temporarily blocked the flights on March 14. He’s trying to determine whether the government defied him with a couple of flights between an oral and written order.
Attorney General Pam Bondi has led lawyers accusing Boasberg of micromanaging immigration enforcement and asking an appeals court to overturn him. Trump has the authority to designate gang members as engaging in an “invasion” or “predatory incursion” into the U.S. and he leads the country’s foreign policy, the lawyers argued.
“There is no basis for a court to look behind those factual determinations,” the lawyers wrote.
The strategy also prevents the migrants an opportunity in court to deny being a member of the gang or to pursue asylum requests. But Tom Homan, Trump’s border czar, told reporters outside the White House on Monday that various investigations identified the deportees under the Alien Enemies Act as members of Tren de Aragua through law enforcement, social media, their activities and criminal records in the U.S. and abroad.
“We removed terrorists,” Homan said. “That should be a celebration in this country.”
Trump told reporters Friday he had the authority to deport people without giving them the opportunity for a court hearing to deny they are members of Tren de Aragua.
“That’s what law says and that’s what our country needs because unfortunately they allowed millions of people to come into our country, totally unvetted, totally unchecked,” Trump said in the Oval Office. “Many of those people are criminals. Many of them were from jails and prisons and mental institutions and gang members and drug dealers.”
Boasberg continues to probe. He gave the Trump administration until Tuesday to decide whether to invoke the state-secrets privilege to keep confidential the number of people on the flights and where they landed.
“This is woefully insufficient,” Boasberg said of a Thursday filing.
Amid the fight, El Salvador’s President Nayib Bukele posted on social media – complete with video – his country received 238 Venezuelan detainees from the U.S.
Joshua Fisher, the director of the White House’s Office of Administration, submitted a court statement Feb. 17 saying Musk doesn’t work for the Department of Government Efficiency and doesn’t control it as merely one among many special government employees advising Trump.
Peter Marocco, the State Department’s director of foreign assistance and the deputy administrator of USAID, submitted a court statement “the DOGE Team cannot legally direct me to do anything regarding personnel, funding or the like.”
As president-elect, Trump unveiled DOGE on Nov. 12. Alongside Musk, the president held a joint news conference Feb. 12 to answer questions about their efforts. Trump told an investment conference Feb. 19 Musk was “in charge.” Musk lectured the Trump’s Cabinet on Feb. 28. And Trump told a joint session of Congress on March 4 DOGE is “headed by Elon Musk.”
At the same time, on Jan. 31, plaques with USAID’s official seal were removed from its offices. On Feb. 1 the agency’s website was shut down. On Feb. 2, email accounts for 2,000 USAID personnel were deactivated. On Feb. 3, he posted on social media he fed “USAID into the woodchipper.”
U.S. District Judge Theodore Chuang ruled Tuesday that USAID was likely shut down unconstitutionally by ruling basically that Musk couldn’t hold so much power unless he was confirmed by the Senate. The accelerated shutdown “deprived the public’s elected representatives in Congress of their constitutional authority to decide whether, when, and how to close down an agency” authorized by Congress, Chuang wrote.
The current evidence “favors the conclusion that contrary to (Musk and DOGE’s) sweeping claims that Musk has acted only as an advisor, Musk made the decisions to shutdown USAID’s headquarters and website even though he ‘lacked the authority to make that decision.’”
Trump has vowed to appeal adverse rulings to the Supreme Court if necessary. The eventual decisions could redefine the relationships between the three branches of government: the executive and legislative haggling over spending priorities and the judiciary as the referee.
“Congress has established by statute an agency or department, or authorized expenditures of dollars, and those are clear duties that are assigned to Congress in Article I” of the Constitution, Tobias said. “They are blunted or eviscerated by these executive orders.”
