Federal authorities are increasingly stepping into disputes the Trump administration argues drop firmly under the government’s foreign policy and national surveillance power, raising a critical legal question:  , When it comes to matters of national security, who decides?
From work to arrest pro-Palestinian activists to the use of the Alien Enemies Act against Venezuelan citizens, the Trump administration has taken the position that these are essentially political or safety decisions — and therefore outside judicial review. But judges have been pushing back, asserting their own authority to evaluate whether these claims hold up under the Constitution and statutory law.
One of the most visible tests of that swing is the case of Yunseo Chung, a 21-year-old Columbia University student and green card holder. Though never convicted of a crime, her pro-Palestinian campus activism drew federal attention. Her lawyers filed a habeas petition ahead of an anticipated arrest under , Section 1227 ( a ) ( 4 ) ( C), which allows the government to deport lawful permanent residents if the secretary of state finds their presence could have “potentially serious adverse foreign policy consequences”.
U. S. District Judge Naomi Reice Buchwald in New York blocked Chung’s arrest, stating there was “nothing in the record” suggesting she posed a foreign policy threat or had communicated with terrorists. The case has become emblematic of growing judicial skepticism toward broad executive claims of foreign policy justification.
That same type of skepticism surfaced in the Trump administration’s recent use of the , Alien Enemies Act, a 1798 statute President Donald Trump invoked to deport Venezuelan nationals, particularly alleged members of the gang , Tren de Aragua. The administration argued the removals stemmed from sensitive negotiations with El Salvador, placing them firmly within the president’s diplomatic authority. But both the district court and the appeals court in Washington, D. C. have blocked the use of the AEA for deportation purposes, with U. S. District Judge James Boasberg on Friday  , extending , a temporary restraining order on the deportations through at least April 12.
In response, the administration appealed to the Supreme Court on Friday with a clear message that it believes courts are usurping the Article II powers that the Constitution gives to the presidency to handle foreign policy without the interference of judicial review.
” This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country—the President, through Article II, or the Judiciary, through TROs”, acting Solicitor General Sarah Harris wrote on Friday, referring to the temporary restraining orders that multiple judges have placed against Trump administration policies.
” The Constitution supplies a clear answer: the President”, Harris wrote. ” The republic cannot afford a different choice”.
McCarthy said the Trump administration might have overextended its authority in some aspects of its policy implementation but warned that there are broader judicial overreach concerns at hand as well.
” There is no single description that fits the plethora of cases in which the Trump administration is squaring off against the courts”, McCarthy said.
” There was no need to invoke the Alien Enemy Act when the Venezuelan aliens were already in legal proceedings, and it was wrong to dispatch them to a foreign prison ( with a terrible reputation ) absent due process”, he said. ” On the other hand, the courts have been overbearing in preventing the chief executive from running the executive branch, removing top officials, scrutinizing spending, and guiding foreign policy”.
” The president is being maximalist and progressive judges are being activist”, McCarthy added. ” It’s a combustible combination”.
The scale of court intervention during Trump’s presidency is also historically significant. According to a , Harvard Law Review , tally, the lower courts blocked more of Trump’s executive orders in his first two months in office than they did for other recent presidents over their entire terms. At least  , 15 national injunctions , have been issued against Trump so far this year compared to , six , across George W. Bush’s presidency,  , 12 , under Barack Obama, and , 14 , under Joe Biden.
Tennessee Attorney General Jonathan Skrmetti, a Republican, told the , Washington Examiner , the trend risks destabilizing constitutional balance. ” When you have individual district court judges making sweeping decisions on a regular basis that are undermining the core function of the President to manage the executive branch, that creates an unbearable constitutional tension that has to be resolved”, Skrmetti said.
” Our nation depends on a vital and energetic presidency”, he added. ” That doesn’t mean lawlessness… but it means that the President has to be able to do things, and when the courts are used by people who don’t like what the President is doing to immiserate the president and make it difficult for him to do anything, that seems to be steering the constitutional balance way too far in the direction of the judiciary”.
McCarthy echoed the longer-term concern, noting that between the Civil War and the first two world wars,” the courts generally stayed their hands as the presidents quelled the threats”. After this period in time, they began to cut against past notions of using military commissions “against citizens and detaining people without resort to judicial process”.
HERE’S HOW TRUMP IS CONTINUING DEPORTATION FLIGHTS DESPITE COURT SETBACKS
” What we’re seeing today is a continuation of the post-9/11 trend, in which modern American courts have been less reluctant to wade into matters of war, national security, and foreign policy”, McCarthy said. ” They still give considerable deference to the executive, but not as much as, say, during and immediately after World War II”.
As the separation-of-powers fight intensifies, both the courts and the Trump administration appear poised to test just how far their respective authority reaches.
