The First 100 Days: The Method Behind the Madness in Court Challenges

It seems like the Justice Department is battling everywhere on everything at the same time.

It is indeed chaos, but it is not necessarily as random or as reckless as it may seem to the naked eye.

I have been critical of a number of legal moves by the Trump administration, including policies that undermine free speech values. Yet there is a type of legal chaos theory behind all of these actions. In science, chaos theory suggests that, even in a system of seemingly random actions, there can be patterns and interconnections.

The hyperkinetic litigation around the country reflects two realities.

First, Democratic state governments and groups have a massive war chest to challenge any and every new policy of President Trump. In California, the Democrats actually pre-approved a litigation fund before the inauguration to do precisely that.

Second, and more importantly, Trump promised sweeping changes from immigration to transgender policies to education reforms.

If you know that you are going to be challenged, it is better to get into court as soon as possible to move critical cases through the legal system. What you need is finality. Even if you lose cases, you need to know what authority you have.

Immigration wins

This is an administration in a hurry. Trump learned in his first term that you need to move as fast and as far as possible in the first two years of a presidential term.

With the midterm elections looming, Trump knows that reforms may end and investigations and impeachments will begin if the Democrats retake the House in 2026.

Despite some losses, the Justice Department has succeeded generally in reaffirming its authority to seek the reduction of government and to root out waste. It has also made real progress in other areas.

Take the area of greatest success for the Trump administration: Immigration.

One thing that was clearly established in the first 100 days is that the entry of millions of unlawful immigrants was a choice made by the Biden administration and the Democrats. They could have stopped most of these entries at any time, but elected to leave the southern border effectively open for four years as millions poured over.

In a matter of weeks, Trump effectively closed the border. In February, there were just 8,326 southern border encounters, down from 189,913 in February 2024. Daily encounters this week declined 97% from Biden.

As many of us stated during the Biden administration, Democrats could have shut down the border, but clearly did not want to. Now with millions in the country, Democrats are calling for “pathways to citizenship” by arguing that there is no way to process so many illegals allowed in under Biden.

In the meantime, the public overwhelmingly favors deportations and elected Trump on his pledge to carry out such removals. Polling shows that 83% of Americans support deportations of immigrants with violent criminal records and roughly half support mass deportation of all undocumented persons.

A new CBS poll shows that, after the first 100 days, 56 percent approve of President Donald Trump’s “program to find and deport immigrants who are in the U.S. illegally.”

National injunctions

To carry out that policy, Trump is seeking to use new expedited systems. For the worst individuals, he has turned to the centuries-old Alien Enemies Act, a little-used act that presents a series of novel, unresolved questions.

Even with this smaller subset of detainees, individual hearings and appeals could make Biden’s decision to allow millions into the country a permanent reality. Many immigrants have been given initial court dates that extend beyond the Trump term.

Trump also pledged to reduce trade barriers for American exports and he is pushing existing laws to the breaking point on tariffs. He is right on the merits.

Even our closest allies impose unfair barriers to our goods and Trump sought to change the status quo with sweeping tariffs issued under his own authority.

Democrats have challenged that authority in various courts and, again, there are good-faith arguments that must be hashed out in court.

It is too early to tell how successful these cases will prove. However, a district court injunction (or even a dozen injunctions) a crisis does not make.

The Supreme Court is about to hear arguments on limiting the use of national injunctions and some of these district court decisions are highly challengeable on appeal.

There is no question that Trump is moving at a lightning speed and the Justice Department has to move at the same pace as the president.

There is also no question that it would better to slow down to avoid some of the unforced errors in the first 100 days.

However, Trump knows that time is of the essence. If he is going to realign the markets and make progress on issues like deportations, he has to put points on the board before the midterm elections. Ronald Reagan lost 26 seats in the House in his first midterm, Bill Clinton lost 54, and Barack Obama lost a breathtaking 63 seats.

The greatest problem for the Justice Department is that the White House and the political team appear to be largely dictating these moves. Political aides see these hills as worth dying on. Even if they lose in court, fighting to remove criminal aliens or to reduce certain foreign aid remains popular with voters.

Don’t alienate judges

The frenzy, however, can come at a cost. That includes alienating justices on the Supreme Court. The resistance to court orders and hyperbolic rhetoric seems to be wearing thin with members like Chief Justice John Roberts.

Trump will need these votes when they really count on big-ticket items like his inherent authority to act in areas ranging from markets to migrants.

Fights over Kilmar Armando Abrego Garcia are burning time and effort. If he was simply returned as ordered by a court, Abrego Garcia could be promptly and correctly deported right back to El Salvador. He has no cognizable basis for remaining in the United States.

Richard Carlson, a Bay Area psychotherapist, famously wrote a book titled “Don’t Sweat the Small Stuff … and it’s all Small Stuff.” Fights like Garcia are small stuff.

Of course, much of what presidents do is “big stuff” and you have two years to make those things happen. In a curious way, the Trump administration is fortunate to have many of these issues in court early to gain greater finality on the lines of authority. However, it needs to focus on the big stuff . . . and a short calendar.

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Jonathan Turley is the author of best-selling book “The Indispensable Right: Free Speech in an Age of Rage.”

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(TLB) published  this article from Jonathan Turley with our appreciation for this perspective

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

Header featured image (edited) credit: X.COM open card. Emphasis added by (TLB)

 

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