House and Senate Democrats, powerless to block much of President Donald Trump’s agenda legislatively, are turning to the courts to curb the impacts of policies they view as harmful.
Their emphasis on the judicial branch signals a recognition they have little influence on Capitol Hill as Republicans prepare to wield budget reconciliation to push through their priorities with simple majorities in both chambers.
Unable to garner support for their legislation, Democrats are looking for ways to respond to an onslaught of constituent calls against the Trump administration’s attempted federal funding freeze and audit of federal agency data by young staffers working for Elon Musk’s Department of Government Efficiency.
“The only way to essentially stop them in their tracks is to use the courts,” said Rep. Melanie Stansbury (D-N.M.), the top Democrat on the GOP’s new Delivering on Government Efficiency panel.
Senate Minority Leader Chuck Schumer (D-N.Y.) launched a portal for whistleblowers and House Minority Leader Hakeem Jeffries (D-N.Y.) started a litigation working group, both teasing possible legal action ahead.
“Trump has not won a single case, but it’s almost as if his sense of Olympian immunity conferred by the Supreme Court has now transferred onto his whole administration,” said House Judiciary Ranking Member Jamie Raskin (D-Md.), a co-chair of the working group. “It’s as if the whole administration feels as if they can act with utter lawlessness and impunity.”
He was referring to the 2024 decision by the Supreme Court’s conservative majority that Trump was immune from prosecution for acts related to his official role as president.
Democrats installed Raskin, a former constitutional law professor and lead manager of Trump’s second impeachment trial, to be the top Democrat at Judiciary, with party leaders believing he would be more aggressive in countering Republicans than his predecessor Rep. Jerry Nadler (D-N.Y.).
Earlier this month, House Judiciary Democrats beefed up their staff with two big hires: Greta Gao, formerly of the Biden Justice Department, and Marcus Childress, a former partner at Jenner and Block.
Gao had worked in office of legislative affairs at Justice and Childress had previously served as investigative counsel to the House Select Committee to Investigate the January 6 Attack on the US Capitol.
More litigation could result from Senate Democrats’ strategy to solicit information about “corruption and abuse of power.” Schumer and Sen. Gary Peters (D-Mich.), the top Democrat on the Committee on Homeland Security and Governmental Affairs, said in a letter to “Brave Public Servants and Whistleblowers” that they will “issue demand letters, preserve public records, conduct public hearings, and pursue legal action where necessary.”
Senate Democrats’ whistleblower portal allows complaints of retaliation, wasteful spending, fraud, criminal activity, and “other.”
“The courts will be an important venue for holding Donald Trump accountable whenever he breaks the law and breaks his promise to the American people,” Schumer said in a floor speech, calling courts “among the most important” resources to check Trump’s power.
Executive Power
Democrats’ faith in litigation, however, comes as Republicans openly question courts’ right to rein in Trump’s executive orders. Vice President JD Vance posted on X that “Judges aren’t allowed to control the executive’s legitimate power.”
House Speaker Mike Johnson (R-La.), a former constitutional lawyer, echoed Vance’s view of expansive executive power.
“The courts should take a step back and allow these processes to play out,” Johnson told reporters. “What we’re doing is good and right for the American people.”
The comments raised alarm about what would happen if Trump simply refuses to comply with court orders. The Marshals Service, an enforcement agency housed in the Department of Justice, falls under Trump’s control.
So far, Trump opponents are operating under the assumption that the president won’t risk alienating mainstream conservatives by openly defying courts.
“Court orders and judicial review are absolutely central to our constitutional order, and we have every expectation that when the courts direct executive branch officials to cease illegal activity, that that’s exactly what’s going to happen,” said Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project.
The ACLU has filed multiple suits against the Trump administration, including on a birthright citizenship executive order that’s since been blocked by federal courts. Trump is appealing the injunction.
Democrats have been heartened by federal judges’ early Trump rulings. A court blocked Trump’s funding freeze before it could take effect last month, and the president lost a subsequent appeals case.
The Trump administration could have better luck as it continues to appeal lower court decisions. Trump appointed three of the nine Supreme Court justices during his first term.
There’s another chink in congressional Democrats’ litigation strategy. “The Supreme Court has been very hostile to individual congressional members’ standing and group members’ standing” to sue, Raskin noted. He said members will be involved by writing amicus briefs, but “it’s possible that we could try to add ourselves as a party to a case if we have distinctive interests that are not being adequately represented by the existing parties.”
And much of the litigation strategy involves simply messaging to constituents about all the lawsuits against Trump’s executive orders.
“We’re doing everything we can to support and lift up the litigation strategies,” of attorneys general, Democratic Caucus Chairman Pete Aguilar (D-Calif.) said, “and other entities who have been harmed by these cuts are doing.”
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