by Paul Nevins*
Since January 21, 2025, there have been a myriad of examples of the new administration breaking the law. To date, there have been repeated violations of the federal Administrative Procedures Act and the unlawful impoundment of billions of dollars for programs authorized by Congress.
Federal agencies created by statutes have been gutted or dismantled such the National Labor Relations Board, the Environmental Protection Agency (EPS), the U.S. Equal Employment Opportunity Commission ( USEEOC), the United States Agency for International Development (USAID), the U.S. Consumer Financial Protection Bureau, the Federal Elections Commission (FEC). Inspectors general and term- protected federal employees have been dismasted without notice or an opportunity to be heard; other federal employees have been discharged or placed on leave in violation of federal civil service laws and federal collective bargaining agreements.
The actions of the Trump-Vance Administration have exhibited a profound indifference to existing constitutional niceties such as due process and equal protection guaranteed to U.S. citizens and lawful residents and asylum seekers against the arbitrary exercise of federal power under the Fifth Amendment to the U.S. Constitution.
U.S. Senator Elizabeth Warren noted, “Donald Trump and his transition team are already breaking the law. I would know because I wrote the law. Incoming presidents are required to prevent conflicts of interest and sign an ethics agreement,” the Massachusetts senator wrote in a post on X that linked to a CNN article. “This is what illegal corruption looks like.”
Many pundits who previously ignored the plight of working class Americans or pontificated ad nauseam in support of identity politics and other divisive issues have disingenuously blamed the Democrats for their inability to thwart the Trump administration’s steamroller, despite the fact that MAGA supporters now control both House of the Congress. These pundits have apparently forgotten that Kamala Harris and supporters of the Democratic Party’s agenda repeatedly warned voters from the August convention until the November general election what was at stake given Project 2025. Millions of U.S. voters blithely ignored those warnings and more than 100 million eligible votes were too preoccupied with their mundane, personal needs to even bother to vote.
Other pundits and a number of legal scholars have placed blind faith in the ability of the federal judiciary to stymie the Trump’s unilateral decrees. As of February 13, 2025, more than fifty lawsuits have been filed across the country and federal district judges have entered eleven Temporary Restraining Orders (TROs) and two Preliminary Injunctions.
To date, only two federal district judges have declined to enjoin Trump’s initiatives while a federal district judge in the Eastern District of Massachusetts dissolved a TRO that he had previously entered on the time-worn ruse that the plaintiffs lacked standing. Two days before that decision, the First Circuit Court of Appeals affirmed an injunction issued by a Rode Island District judge that the Trump administration had appealed.
Although many of these court decisions may seem to offer some grounds for initial optimism, that optimism may prove to be a chimera. The full implications of the United States Supreme Court’s decision on presidential immunity are apt to prove the comment attributed to former Chief Justice William Rehnquist, “it is always possible for the court to overreach its proper bounds and perhaps declare a lot of laws unconstitutional and frustrate the will of the majority in a way that it ought not be frustrated.”
In Trump v. United States, 603 U.S. 593 (2024), the U.S. Supreme Court held that “Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.”
Citing as precedent the case of Nixon v. Fitzgerald, 457 U. S. 731, 749–756 (1982), the 6-3 majority opined that “At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”
While this part of the court’s decision was widely reported and discussed, missing from much of the legal analysis was the Supreme Court’s discussion about the president’s power to pardon. The majority decision, written by Chief Justice Roberts, emphasized that "The Constitution, for example, vests the ‘Power to Grant Reprieves and Pardons for Offences against the United States’ in the President. Art. II, §2, cl. 1. During and after the Civil War, President Lincoln offered a full pardon, with restoration of property rights, to anyone who had “engaged in the rebellion” but agreed to take an oath of allegiance to the Union.. But in 1870, Congress enacted a provision that prohibited using the President’s pardon as evidence of restoration of property rights. Id., at 143–144. Chief Justice Chase held the provision unconstitutional because it-‘impair[ed] the effect of a pardon, and thus infring[ed] the constitutional power of the Executive.’ Id., at 147. ‘To the executive alone is intrusted the power of pardon,’” and the “legislature cannot change the effect of such a pardon any more than the executive can change a law.” Id., at 147–148.The President’s authority to pardon, in other words, is ‘ conclusive and preclusive’ “disabling the Congress from acting upon the subject’. Youngstown, 343 U. S., at 637–638 (Jackson, J., concurring). "
The court’s discussion about the president’s power to pardon is essential to understand the constitutional crisis that is now unfolding. Coupled with the president’s immunity for any acts that he deems official, the president may now use his power to pardon to defy any injunctions issued by the federal courts. Since the sole power to enforce court rulings requires a finding of criminal contempt after an evidentiary hearing, Trump can and will simply pardon any of his officials held in contempt. He can then repeat this scenario ad seriatim.
J.D. Vance provided a hint of this strategy on February 5, 2024, when he repeatedly told ABC News that, unlike Vice-President Mike Pence, he would not have certified the results of the 2020 election. “If I had been vice-president, I would have told the states, like Pennsylvania, Georgia, and so many others, that we needed to have multiple slates of electors, and I think the US Congress should have fought over it from there,” he added. “That is the legitimate way to deal with an election that a lot of folks, including me, think had a lot of problems in 2020.”
A day earlier, on February 4, 2024, George Stephanopoulos questioned Vance about statements he made in 2021,when he stated that he would advise then former President Trump to “fire every single mid-level bureaucrat, every civil servant in the administrative state, replace them with our people” and that if he was blocked from doing so, that he should “stand before the country like Andrew Jackson did, and say, ‘The chief justice has made his ruling. Now let him enforce it’.”
“Fire everyone in the government, then defy the Supreme Court? You think it’s OK for the president to defy the Supreme Court?” Stephanopoulos asked.
Vance replied “every civil servant in the administrative state” should be fired. “The constitution says that the Supreme Court can make rulings... but if the Supreme Court said the president of the United States can’t fire a general, that would be an illegitimate ruling,” said Mr Vance.
Vance argued there is a “major problem” among administrative staff who “don’t respond to the elected branches”. “The president has to be able to run the government as he thinks he should. That’s the way the Constitution works,” he observed.
In her dissent in the Trump v. United States, Justice Sotomayor observed correctly that the majority decision “reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘“bold and unhesitating action;’ by the President…the Court gives former President Trump all the immunity he asked for and more.”
What the good justice failed to note was that the Supreme Court’s immunity decision, when read in conjunction with its emphatic ruling on the scope of presidential pardons, effectively gives not only Trump but all of his administrative aides, special government employees, department heads and his legion of minions, surrogates, acolytes and Proud Boys a presumptive immunity that will enable them to ignore any and all federal court decrees.
Since the Congress is now under the control of MAGA Republicans who he already abdicated their oversight responsibilities, Trump’s unlimited power to pardon raises anew the still unanswered question posed by the Roman poet Juvenal eighteen centuries ago, Quis custodiet ipsos custodes? ("Who will watch the watchmen?).
An autocracy, thanks to the United States Supreme Court, may already be upon us.
*The wrier is a trial attorney with 43 years of experience representing employees and victims of employment discrimination and is the author of two non-fiction books that address contemporary U.S. political, legal and economic issues.