The immunity decision does not mean that Trump can do anything now

The new administration is extreme, but that is not an excuse to say "there's no point." Also: The Trump administration has already started to take action at SCOTUS.

It has been a week to remind us of what it means to live during a Trump administration. There will be too much, it will be chaotic, and much of it will be bad.

This time, though, President Donald Trump and his team are working in hyperdrive, aided by Project 2025’s plans and people; wealthy men are being given free rein to take over wide swaths of governing with little to no accountability; Republican so-called leaders in Congress are cowed; congressional Democrats are failing in any meaningful sense to serve as a unified opposition party; many of those controlling the journalism and technology means of mass communication appear to be as interested in appeasing Trump as they are in doing anything else; and the U.S. Supreme Court is itself receptive to at least some of Trump’s aims.

In short, it’s not good. In addition to the flurry of executive orders, we’ve also seen much else — from appointees to implementation and more — that is extremely concerning:

• The confirmation of Pete Hegseth to be defense secretary, in light of what is known about him, is horrifying.

• The overnight shuttering of wide swaths of our public health system — including its effects on higher education — is deadly.

• The forced ignorance being put in place by Trump’s insistence on rolling back civil rights advances is disgusting.

• The anti-transgender and anti-intersex policies being immediately implemented — effectively diminishing the full citizenship of trans and intersex people — are frightening.

• The illegal effort to immediately fire inspectors general on Friday night to free the Trump administration from even that minimal oversight is lawless.¹

There is — and will be — much more.

The question, as it was the first time, is how we deal with this. Finding an answer and succeeding, this time, will be more important.

As part of that answer, it is essential that one preliminary matter needs to be cleared up: The Supreme Court’s immunity decision from this past July is about whether the president can face criminal liability for his actions. It is not, in any way, a ruling that prevents civil litigation seeking to stop — or reduce the harm from — any action of this administration.

There has been a refrain since the immunity ruling, from many corners, that presidents can do anything now because they’re immune. That is not so.

First, the ruling — as bad as it was — didn’t go quite that far even as to criminal liability, only conclusively addressing immunity as to “official acts” within a president’s “exclusive sphere of constitutional authority” and holding that there is “presumptive” immunity as to other official acts “within the outer perimeter of [a president’s] official responsibility.”² Second, and my point here, the ruling had nothing to do with any of the legal steps that can be taken to challenge and block presidential actions when they violate laws or the Constitution.

To give just one example, look at the Administrative Procedure Act. The APA sets out requirements that an administration must take to put in place agency actions — and, on the other side of the ledger, sets forth ways to challenge them.

It was under an APA challenge that the Supreme Court rejected the first Trump administration’s attempt to put a citizenship question in the Census questionnaire. As Chief Justice John Roberts wrote for the court:

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. …

Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.

The immunity decision does nothing to restrict cases like that in this Trump administration.

The inspectors general showed how people need to respond to Trump and the Trump administration when illegal actions are taken. In a letter sent to the man who purported to illegally fire them, the chair of the council for the inspectors general, Hannibal “Mike” Ware, wrote, “At this point, we do not believe the actions taken are legally sufficient to dismiss Presidentially Appointed, Senate Confirmed Inspectors General.“

There will be many difficulties in the Trump administration, and some of them will not be able to be challenged in court — like Hegseth’s confirmation. Additionally, for those that can be challenged, the Supreme Court’s 6-3 conservative majority will be skeptical of if not indifferent to many such challenges — but that is a separate question from the immunity decision and the courts must be forced to justify any decision in any challenge to the Trump administration.

Challenges are already underway in lower courts and, especially as to Trump’s executive order to restrict birthright citizenship, those challenges could be reaching the Supreme Court sooner rather than later, so this is not a hypothetical discussion.

Stepping back, this is also a part of a larger discussion — one that I think of as the “there’s no point“ nihilism approach to the administration. There absolutely will be people on the left who take that approach — just as there were in the Reagan years and in the George W. Bush administration — but I think that is both wrong and in some cases dangerous.

Not all challenges will succeed. The point, though, as I see it, is (at least) three-fold: First, the Trump administration must be forced to defend its actions that veer afield of or ignore the law.

Second, the courts must be forced to weigh in. We must not allow Trump’s actions to pass by without forcing the court to either stop illegal acts or, in essence, own those acts that clearly violate federal law.

Third, particularly in light of the current failure of congressional Democrats to unify in opposition to Trump’s actions, every effort possible should be taken by others to reduce the harm imposed by Trump administration will be important. Some efforts will not even aim to stop an action, having a purpose of reducing harm.

It will take work and it won’t always succeed, but it is always important.

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The Trump administration goes to SCOTUS

On Friday, the Justice Department filed at least five notices that it does or could have a different position in an ongoing case at the U.S. Supreme Court.

Most notably, DOJ is changing positions in a complicated, ongoing case over Louisiana’s congressional map and whether a second majority-minority district is needed to meet the requirements of the Voting Rights Act.

I wrote in the fall about the likely effect of the election on ongoing cases at the Supreme Court, and, as in other areas, the newly installed Trump appointees wasted no time before acting.

Acting Solicitor General Sarah Harris, who was a partner at Williams & Connolly (and a “protégé” of Lisa Blatt) before joining the Trump administration, signed a letter on Friday asserting that the Justice Department “has reconsidered“ the government’s position in the case and determined “that the previously filed brief no longer represents the position of the United States.”

Harris didn’t say DOJ’s new position, just that it no longer agrees with the brief filed on December 23 and no longer wants to participate in oral arguments in the case.

Additionally, DOJ filed four requests in four other cases before the Supreme Court — in three Clean Air Act cases and in litigation over student loan forgiveness — to hold the cases in abeyance until the new administration figures out its position in the case. The student loan case addresses an Education Department rule regarding, as SCOTUSblog’s Amy Howe explained when the court granted the case earlier this month, “requests for student loan forgiveness from borrowers whose schools defrauded them or were shut down.”

As to the basis for Friday’s requests, and as one of the Environmental Protection Agency cases, for example, put it, the Justice Department stated, “After the change in Administration, EPA’s Acting Administrator has determined that the agency should reassess the basis for and soundness of the 2022 reinstatement decision.”

There were similar statements in the motions filed in the other two EPA cases and in the student loan case.

In the EPA cases, the other side opposes putting the case on hold. In the Education Department case, a group of colleges that sued over a rule did not oppose putting the case on hold — presumably hoping that the Education Department will act to withdraw the rule and make it harder for students to get loan forgiveness.

These five filings were, undoubtedly, just the start.

1. This sentence was clarified after publication.

2. The sentence was expanded after publication.