A number of these lawsuits have achieved some success. Just three days after Trump issued an executive order attacking birthright citizenship, for example, a federal judge in Seattle temporarily blocked it. Many of Trump’s efforts to “impound” funds that he does not wish to spend have also run into similar trouble in federal court.
Still, only the most naive legal analyst would conclude right now that the US constitutional system will survive Trump’s second term intact, or that the courts have definitively ruled that Trump’s agenda is in jeopardy. It is certainly possible that, when all of this litigation is over, Trump will face loss after unambiguous loss and be forced to give up many of his attempts to defy the Constitution. But it is far too soon to predict how all of these lawsuits will play out — or even if Trump will comply with any court orders against him.
To date, no appellate court — the mid-tier courts in the federal system — has weighed in on any of these cases, not to mention the Supreme Court. Similarly, while some federal trial courts have ordered Trump to stop some of his illegal actions, many of these decisions are temporary stopgap orders that expire quickly, and that are intended largely to maintain the status quo while the judges hearing these cases get up to speed on the legal issues that they present.
It’s a lot to keep track of. And, in many of these cases, there are likely to be months or even years more litigation before the legal issues presented by these cases are fully resolved.
It’s also worth noting that, as these cases make their way through the federal appellate process, they are more and more likely to be heard by judges who tend to be sympathetic to Trump — including a Supreme Court that has held that Trump may use the powers of the presidency to commit crimes.
Initially, plaintiffs often shop around for a court where their case is likely to be heard by a sympathetic judge. As the case advances through the appeals process, however, it is more and more likely to be heard by less friendly judges — or even by hardline partisans who are actively hostile to lawsuits challenging the actions of a Republican president.
That doesn’t mean that Trump will necessarily win every single case against him. Some of his legal arguments, such as his claim that he can simply refuse to pay money that Congress has already appropriated, are so weak that they’ve been criticized in the past by the Republican Supreme Court justices. But it does mean that plaintiffs challenging Trump’s actions are more likely to have early wins than they are in higher courts where they have less control over which judges hear their case. And that means that while Trump has suffered some initial setbacks in his efforts to remake the federal government, those may prove to be little more than temporary annoyances for him and his allies.
The three-tier federal judiciary
Broadly speaking, the federal judiciary has three tiers. In the lowest level, known as “district” courts, a single judge will typically hear a case and decide on their own whether to issue an order blocking the government’s actions.
Even when a district judge does issue such an order,, it may not last very long. Several judges, for example, have issued what are known as “temporary restraining orders” (TROs) blocking some of the Trump administration’s actions. In one case challenging the Treasury Department’s decision to give some of billionaire Elon Musk’s allies access to a very sensitive computer system that manages federal payments, a New York-based judge temporarily limited access to those systems to “civil servants with a need for access to perform their job.”
But temporarily restraining orders are, as the name suggests, quite temporary. Sometimes, a judge can even issue such an order before the defendant is aware they’ve been sued (although this is only supposed to happen in order to avoid “immediate and irreparable injury, loss, or damage”). With rare exceptions, a TRO cannot be appealed to a higher court. But they also typically expire in two weeks or less.
Eventually — and very soon after they hand down a TRO, if one has been issued — a district judge will hold a “preliminary injunction” hearing, where both the plaintiffs and the Trump administration will be given a full opportunity to present their legal arguments to the court.
Like TROs, preliminary injunctions block the action the plaintiff is suing over. However, unlike TROs, they are an appealable order — meaning that, once a district judge issues such an injunction, the government may ask a higher court to step in and reverse that decision. Assuming that no higher court steps in, however, a preliminary injunction can last for a very long time — often until the case is fully litigated and the district court issues a permanent injunction blocking the government’s actions forever.
Before a district judge can issue a preliminary injunction, they typically must make several determinations — including a determination that the plaintiff is likely to succeed on the ultimate merits of their lawsuit.
The Trump administration is likely to appeal any preliminary injunction issued against the government to a “court of appeals” or “circuit” court. At this stage, the government may ask the appeals court to permanently lift the preliminary injunction, but it can also request a temporary order (or “stay”) suspending the preliminary injunction while the case is being appealed.
Federal appeals courts typically hear cases as three-judge panels, with the three judges randomly selected from among all of that court’s judges. Smart plaintiffs will think about which appeals court is likely to hear their case before they choose where to file it in the first place.
Republicans, for example, will often choose to bring lawsuits in Louisiana, Mississippi, or Texas, because a federal case originating from those states will typically be heard by the US Court of Appeals for the Fifth Circuit — the most right-wing appeals court in the federal system. Democrats, meanwhile, might prefer the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) or the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia), both of which have a Democratic majority.
In any event, whichever party loses in the court of appeals can ask the Supreme Court to review the appeals court’s decision. Unlike federal appeals courts, however, the Supreme Court is not required to hear the overwhelming majority of cases that come its way — and the justices often simply refuse to consider a case that they do not want to hear.
Just as with an appeals court, however, a party that seeks Supreme Court review can potentially get two bites at the apple. They may ask for a temporary stay of the appeals court’s decision on the Court’s “shadow docket,” and they may also ask the justices to give the case a full hearing — thus establishing once and for all whether the government’s challenged actions were illegal.
All of which is a long way of saying that federal litigation can be a very drawn out process. None of the many lawsuits against Trump are very far along in that process. And there is likely to be a great deal of drama and shifting fortunes as higher courts get involved.
