Courts will have to determine the extent of presidential power

BROWNVILLE, Maine — “See you in court.”

Those four mumbled words have set in motion more than 100 legal challenges that have been issued to fight the initiatives of the president’s first eight weeks in office.

The provocation was issued by Janet Mills, the second-term Democratic governor of Maine. She was responding to Donald Trump’s threat to cut off the state’s federal funding if it didn’t ban transgender girls from participating in school sports.

“I’ll follow the law,” the governor said. The president answered: “Good. I’ll see you in court. I look forward to that.”

Trump won’t actually be in court, but federal lawyers will, especially since the administration has launched an investigation into Maine’s refusal to comply with the presidential order. The reaction has been strong — from warring sides.

“Makes me proud to be a Maine man,” declared the horror novelist Stephen King, perhaps the state’s most famous citizen. Then again, anti-Mills protesters gathered at the tiny statehouse in Augusta last weekend in a “March Against Mills” demonstration to decry the governor’s stance.

“I don’t know what legal authority Trump has in this, except to cut off funding, and he may not have unlimited power to do that,” said G. Calvin Mackenzie, an emeritus political scientist at Colby College in Waterville, Maine. “It’s very hard to predict how the courts will decide this or any of these cases.”

The possible legal showdown that the governor and the president seem to desire is just one of dozens growing out of the aggressive beginning of Trump’s administration.

His challenge to birthright citizenship already has spawned eight legal cases, according to a New York University website tracking such suits. There are nearly a dozen challenges to the administration’s immigration and asylum policies, another dozen to Elon Musk’s Department of Government Efficiency efforts, and two each to the termination of inspectors general, the firing of federal officials, and the dismantling of the United States Agency for International Development (USAID) and the Consumer Financial Protection Bureau.

The imbroglio involving Mills and Trump began after the president told her, at a White House meeting for governors, “You better comply, you better comply, because otherwise you’re not getting any federal funding.”

Any court case growing out of that threat will raise important constitutional issues beyond whether the president can cherry-pick individual states for denial of federal funds — itself a question of the federalism that is at the heart of the country’s founding document.

A separate, equally significant matter involves whether presidents have the right to withhold spending that has been appropriated by Congress.

On the surface, that question — which first appeared under Thomas Jefferson, who in 1803 delayed spending congressionally appropriated funds for the purchase of Mississippi River gunboats, and then reemerged under Ulysses S. Grant on the issue of river and harbor projects in 1876 — appeared settled in the Nixon administration. Congress in 1974 passed the Impoundment Control Act, which, according to the Government Accountability Office, “operates on the constitutional premise that the President must obligate funds appropriated by Congress, unless otherwise authorized to withhold them.”

Also in the balance is the more general issue of the relationship between the government’s legislative and executive branches. Many Trump critics believe the administration has endangered the balance of power between the two branches, seized control of trade policy ordinarily determined by Congress, and affected the prerogatives of agencies, including USAID, that were created by Congress.

It could be that the country actually yearns for an overhaul in the established order of things. A Quinnipiac University poll showed that only 1 in 20 Americans believes the country’s political system is working extremely or very well.

Some voices inside the administration call for what Russell Vought, writing in the influential Project 2025 manifesto, called “aggressive use of the vast powers of the executive branch.”

Vought, now the administration’s budget director, argued: “Success in meeting that challenge will require a rare combination of boldness and self-denial: boldness to bend or break the bureaucracy to the presidential will and self-denial to use the bureaucratic machine to send power away from Washington and back to America’s families, faith communities, local governments and states.”

At the heart of much of the controversy is the unitary executive theory, which has roots in James Madison’s proposal for the three branches of government. The theory stipulates that the president controls the entire executive branch and thus possesses power to remove officials and determine the shape, and ultimately the very existence, of government agencies.

“The courts have not had a chance to rule on this, and they’ll decide how much control the president has over executive-branch employees,” said Claire Wofford, a legal expert at the College of Charleston. “We also may get clarification about how much control the president has over spending.”

Legal experts agree that the Trump administration will prevail in some of these challenges and will be defeated in others. There is less agreement as to whether, in the case of those defeats, the administration will follow court orders.

“The question is less whether the courts will play a more powerful role than they might often play at this point in a new administration,” said Marc Hetherington, a political scientist at the University of North Carolina, Chapel Hill. “One real issue is the courts’ weaknesses are such that it has no squadron of enforcers.”

When, for example, the Supreme Court unanimously voted in 1954 to end school segregation “with all deliberate speed,” it took years for that goal to be even partially achieved.

Trump complied with every court order during his first term, but Vice President JD Vance has written on X that “judges aren’t allowed to control the executive’s legitimate power.” That may be a blatant challenge to court authority or, conversely, merely a provocative but legally meaningless statement of the obvious: that courts have the right to determine what is the legitimate power of the executive branch.

“The most ominous question,” Larry Diamond, a senior fellow at the conservative-leaning Hoover Institution at Stanford University, has written, “is what will happen if the federal judiciary arrives at a clear and final ruling that some (or even most) of these acts are unconstitutional or illegal, and then Trump carries on with them defiantly?”

That could be the fire next time.

David M. Shribman is the former executive editor of the Pittsburgh Post-Gazette.