Officials in the Trump administration remain secretive on the president’s push for government overhaul. But judges want transparency.
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.”
Pentagon, judge disagree on deference
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.
Supreme Court curbed agency power over regulations
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.”
