How Trump hacked the judiciary
His fake "emergencies" are pushing the country toward autocracy.
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There’s no question that the Department of Justice is an absolute shambles under Attorney General Pam Bondi and President Trump, given that the latter basically dictates what the DOJ does now, and he’s a crumbling mess of capriciousness and id. However, whether by accident or design, the DOJ has hit on one strategy that works: exploiting little-known, sometimes even never-before-used laws as the basis for Trump’s constant states of emergency.
This is a neat trick for two reasons. First, it confounds the courts a bit as they are forced to grapple with scenarios where there isn’t a well-developed body of law to rely on to interpret whether whatever ridiculous or evil thing that Trump is doing is permitted. And because of those gaps in the law, Trump is able to exploit the judiciary’s deference to the executive branch, particularly if the president is claiming there’s some sort of national security need.
It’s easy to get frustrated at the federal courts for not being bolder, especially earlier in Trump’s lawless reign. But courts — the current conservatives on the Supreme Court notwithstanding — are inherently small-c conservative and cautious entities. Their work is built on precedent, on looking at what has come before.
It takes time. And that’s a weakness in the judicial system that Trump exploits over and over again.
Broadly speaking, Trump’s (mis)use of the law falls into four categories. Distressingly, at root, all of these excesses are about this administration’s abiding, unwarranted hatred for immigrants and for other countries, even when there are spillover effects for everyone else.
First, the administration has invoked a mishmash of domestic law to justify its international crimes in bombing boats in the Caribbean (and the country of Iran). Next, existing immigration laws have been cobbled together in a sort of unholy patchwork, an ever-shifting mess that allows the administration to pretend there’s some legal authority for what is nothing but xenophobia-fueled cruelty. Third, Trump relies on never- or seldom-used laws about presidential authority to deploy active-duty troops domestically, warping beyond reason any conception of state sovereignty. Finally, of course, there was the use of emergency powers to justify his sweeping, random, and retaliatory tariffs, which is where Trump received the biggest setback.
Yes, indeed, it’s inherently depressing that the only meaningful limitation the Supreme Court has seen fit to impose on Trump’s powers related far more to ensuring the safety of some justices’ pocketbooks rather than the safety of immigrants, Americans living in blue cities, and unarmed fishermen and fishing boats in the Caribbean. But Trump and his lawyers have also had a lot of success in the lower courts thanks in part to their brazen distortions of the legal code.
The very legal and very cool clause
It feels odd to be discussing how Trump has used domestic laws to create international chaos without discussing his unprecedented, undeclared war in Iran that is currently spiraling out of control. But Trump hasn’t actually relied on any laws for that. Instead, he’s just claiming that his inherent Article II power magically gives him the authority to do it, despite the power to declare war exclusively belonging to Congress.
Trump loves claiming that his Article II power is basically unlimited, allowing him to ignore courts and Congress as long as he can say there’s an emergency or he’s acting with his inherent prerogative as president or both. That’s a justification that conservatives have adopted wholesale to justify the Iran War, even though it literally contradicts the Constitution.
Though Trump did some Article II flexing back when he was bombing fishing boats in and around the Caribbean, his justification for those strikes was a mashup of emergency powers, a tortured reading of some laws, a claim that national security is at stake, and an assertion that he can do whatever he wants. The administration did release a heavily-redacted version of a Office of Legal Counsel memo, which it says justifies the boat strikes and the invasion of Venezuela to abduct Nicolas Maduro. That memo floated the idea that maybe 10 U.S.C. § 274(b)(2)(F)(iii), which allows the defense secretary to make personnel available to transport suspected terrorists from foreign countries, could provide a legal basis, but went on to concede that whoops, that would have required Maduro to be charged with specific crimes he hadn’t been charged with, such as material support of terrorism.
So instead, the administration’s stance is, at root, that the president can do whatever he wants, whenever he wants. And with the boat strikes, who can stop him?
There’s not really a way to sue the government to stop this, as there’s no one who has standing. Families of victims of the boat strikes have filed wrongful death lawsuits against the administration, but those cases aren’t about attacking the justification for the strikes directly, nor do they function as a way to stop Trump and Hegseth from continuing to do this.
Fake invasions
While Trump barely pretends to have a legal justification for his brutality abroad, he’s stretching laws to the breaking point to provide a veneer of legitimacy for mass deportation.
In March of last year, Trump invoked the Alien Enemies Act (AEA) to say that somehow, a combination of the Tren de Aragua gang and the Venezuelan government, then headed by Maduro, was a “hybrid criminal state” that was invading the United States. This, in turn, formed the basis for the dead-of-night deportation of 261 alleged Venezuelan TdA gang members to CECOT, El Salvador’s notorious prison. The fight over the administration’s defiance of Judge James Boasberg’s order to turn the planes around is continuing, nearly a year later.
The AEA has only been invoked three times, and only in times of war — the War of 1812, World War I, and World War II. It’s most well-known as the justification for interning tens of thousands of Japanese-Americans during World War II. (A normal president wouldn’t want to invoke that shameful legacy, but we have Donald Trump instead.)
Because the AEA has never been invoked in peacetime, has never been invoked in the immigration context, and because the idea of a “hybrid criminal state” was invented out of whole cloth, courts have struggled with what to do, which is why there is still no final ruling on whether Trump can use the AEA in this fashion.
In May 2025, the Supreme Court, closing the barn door after the horse had bolted, refused to lift a temporary block on using the AEA to deport Venezuelans based on Trump’s nonsense. But that’s only because litigation is continuing, and the court severely limited relief for people the administration is trying to deport by saying the only way to challenge their detention under the AEA is to bring an individual habeas claim.
In January, the Fifth Circuit Court of Appeals sitting en banc — which is when the whole court re-hears a case after an initial three-judge panel ruling — heard oral arguments about whether the AEA allows this. The administration’s stance is its typical one: courts are simply not allowed to review any of Trump’s proclamations under the AEA.
This stance carves out wholly new ground. At root, it makes two new arguments courts haven’t dealt with yet. First, whether the AEA is even applicable to a newly-invented concept of a non-wartime “invasion” by a “hybrid criminal state.” Next, whether Trump’s authority in using it in this new context is so vast that courts cannot even consider it. Meanwhile, the administration continues to treat the need to round up random Venezuelans as an inherent emergency, a vital national security interest.
Trump has also used a byzantine combination of portions of the Immigration and Nationality Act to drastically increase its detention and deportation efforts. These rationales shift over time, but are always a complicated, tortured reading of those statutes that somehow — you guessed it — lets Trump do whatever he wants.
Fake rebellions
Trump has also broken new ground — not in a good way, mind you — with his use of laws about federalizing active-duty troops and deploying them domestically. (Only in blue cities, naturally.)
This was inevitable given how desperately Trump wanted to invoke the Insurrection Act in his first term during the 2020 George Floyd uprising. He hasn’t gone that far this time around, but he’s worked hard to figure out other ways to achieve his goals, and anti-ICE protests in Los Angeles gave him a perfect opportunity to try out a new theory: that the president can magically federalize a state National Guard based on vibes.
On June 7 of last year, Trump issued a memo invoking 10 U.S.C. 12406. That’s a provision that allows the president to federalize a state National Guard, and up until then, that had always been read to require orders to be issued via the governor of the state. That section also can only be used if there is an invasion or danger of invasion, a rebellion or danger of rebellion against the government, or if the president could not execute federal laws with the regular forces available.
Trump didn’t get the consent of California Gov. Gavin Newsom, nor was it in any way credible to claim there was a “rebellion” or that Trump could no longer execute federal laws with the glob of ICE and CBP goons already in place. But Trump just went ahead anyway, with the truly novel idea that the requirement orders be issued “through” the governor was met by Defense Secretary Pete Hegseth ordering the commander of the California National Guard to allow federalization and, since the commander reports to Newsom, voila! Orders were issued “through” Newsom.
The administration also took the unprecedented step of arguing that any “protests or acts of violence” were actually a rebellion. So Trump rolled troops into Los Angeles, shouting “emergency” and “national security” all the while.
District Court Judge Charles Breyer blocked Trump from doing so nearly immediately, only to have the Ninth Circuit Court of Appeals step in and stay that order indefinitely. That left the case in limbo and the troops on the streets while the litigation proceeded. This proved enough of a mess that Breyer wasn’t even sure, for a time, that he had jurisdiction to hear the case. But Breyer ended up having to conduct a trial and ultimately wasn’t able to rule until December 2025 that Trump had to get the troops out.
During those months, however, Trump kept pushing the envelope because there was no court ruling telling him he couldn’t. So, in October, when a lower court ruled he could not similarly federalize the Oregon National Guard over sporadic anti-ICE protests there, he hit upon the notion of sending the already-federalized California National Guard to Oregon instead.
At the same time, Trump leveraged the fact that he’d been allowed to federalize California guard members under his tortured readings of both “through the governor” and “rebellion” to also federalize the Illinois National Guard in preparation for a deployment to Chicago. The Supreme Court finally ruled on this in December 2025, telling the administration it wouldn’t let him send troops to Chicago because “at this preliminary stage, the government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.”
Well, the Supreme Court sort of ruled. This came down on the shadow docket, so it isn’t a final ruling on anything. After six months of wrangling, the best that blue states could get was a temporary reprieve, a limbo. There’s no definitive ruling that Trump’s perverse and risible re-reading of the law is wrong and can’t be used ever again. The state of permanent emergency invented by the administration therefore continues.
Of course, the administration wasn’t going to let a little thing like the Supreme Court stop it from invading states. Only 10 days after the Supreme Court’s ruling on the Illinois federalization came down, the administration surged thousands of ICE agents into Minnesota, based not on some purported rebellion, but somehow because of alleged fraudulent misuse of federal money. The administration was also savvy enough not to rely on any laws for this one, instead saying only that the president had clear authority under Article II to invade a state to enforce federal immigration laws.
Who says the Trump administration can’t learn from its mistakes, right?
Finally, there were all the emergency invocations of Trump’s powers under the International Emergency Economic Powers Act (IEEPA) to impose whatever tariffs his fevered brain came up with, for any reason. He lost at the Supreme Court on that one, but then promptly pivoted to saying he would just use different, never-before used laws to impose tariffs, starting a whole new round of litigation.
Flooding the zone
This administration’s philosophy towards laws is fundamentally the Steve Bannon approach — to flood the zone with shit.
It does things with no legal justification at all. It does things based on legal justifications that are obviously false. It does things based on legal justifications that have never been used before. It does things based on legal justifications that stretch far beyond reason. And it does so, always, by saying there is some emergency that allows — even requires — such action.
Courts are tangled up in this mess, playing whack-a-mole with each new development, while the rest of us try to survive a lawless, dangerous presidency.
That’s it for today
We’ll be back this afternoon with a new episode of Nir & Rupar (featuring the great Paul Waldman) and will also have a special weekend edition of the newsletter for you tomorrow. If you appreciate today’s PN, please do your part to keep us free by signing up for a paid subscription.
Thanks for reading, and for your support.
As always, Lisa lays it out in such a logical way. Too bad it’s also such a depressing read. The end says it all. We have a judicial system playing whackamole and by experience, that is an exhausting and fruitless strategy to success!!!
Thank you, Ms. Needham. A good overview. The cult members aren’t intellectually capable of understanding that this abuse of the law can and will come back on them.