The Separation of Powers

Susan Estrich
Wed, 06 May 2026 23:00:00 -0700
Opinion

What distinguishes us from a monarchy? The fact that all power is not lodged in one man or one department. The fact that no one is above the law. Even the president, even one like Donald Trump, who believes in extensive Executive Power, must follow the decisions of the courts, just as judicial review limits Congress to actions that are within its purview and constitutional. These are principles as old as our democracy, and essential to its preservation.

They are under attack, and so is our democracy.

In a recent study by the Associated Press, the news organization reported that in the administration's first 15 months in office, district court judges ruled it was violating an order in at least 31 lawsuits over a wide range of issues, including mass layoffs, deportations, spending cuts and immigration practices. That amounts, according to the AP, to one out of every eight lawsuits in which courts have at least temporarily blocked the administration's actions, and the Administration has violated the court order. One out of eight.
Updated: Thu May 07, 2026

What distinguishes us from a monarchy? The fact that all power is not lodged in one man or one department. The fact that no one is above the law. Even the president, even one like Donald Trump, who believes in extensive Executive Power, must follow the decisions of the courts, just as judicial review limits Congress to actions that are within its purview and constitutional. These are principles as old as our democracy, and essential to its preservation.

They are under attack, and so is our democracy.

In a recent study by the Associated Press, the news organization reported that in the administration's first 15 months in office, district court judges ruled it was violating an order in at least 31 lawsuits over a wide range of issues, including mass layoffs, deportations, spending cuts and immigration practices. That amounts, according to the AP, to one out of every eight lawsuits in which courts have at least temporarily blocked the administration's actions, and the Administration has violated the court order. One out of eight.

That is a terrifying number. Where is respect for the rule of law? Courts don't have armies to enforce their orders. They have respect for the rule of law. If the administration doesn't abide by the rule of law, the court is largely limited to contempt citations for the lawyers involved, many of whom are under orders to do the administration's excessive bidding or lose their jobs.

The 31 violations are in addition to more than 250 instances of noncompliance that judges have recently highlighted in individual immigration petitions — including failing to return property and keeping immigrants locked up past court-ordered release dates.

President Donald Trump's immigration fiasco has turned into a wholesale assault on the rule of law. Ironic, isn't it?

My outrage of the week, in this vein, occurred in Rhode Island. Trump administration officials had not told Judge Melissa R. DuBose that the man she was about to release on bond, Bryan Rafael Gomez, was wanted for murder in the Dominican Republic. The judge ordered the release of Mr. Gomez on April 28 after he filed a petition challenging the legality of his detention.

Two days later, the Department of Homeland Security posted a news release attacking her on the basis of the information that it had withheld ... " An activist judge appointed by former President Joe Biden released this wanted murderer back into American communities," D.H.S. Acting Assistant Secretary Lauren Bis said in the statement. They repeated the statement two days later, after being confronted by the fact that the Court had not been informed of the foreign charge, which, in the meantime, has yet to be confirmed independently.

Disobey. Lie. Repeat the lies. Attack the Judge as a Biden appointee. Hope that a higher court will somehow rescue them from the treachery. But what about the rule of law?

Because of this administration, judges face dangers they have not faced since the civil rights era. Frank J. Perry, the chief deputy clerk of the Federal District Court for the District of Rhode Island, said that the news release attacking the federal judge because of "alleged criminal charges in the Dominican Republic" was "inflammatory" and "risks inciting threats against members of the judiciary."

Attacking her for ignoring so-called facts she was not told about is not only an attack on her, but on the rule of law. If there was any reason to keep an ongoing investigation private, the information could have been submitted to the judge under seal — instead of in a press release attacking the judge. Stunts like this illustrate only the contempt this administration clearly has for the judiciary, and with it, the rule of law.

In a hearing on Monday, Judge DuBose said the government's decision to withhold information about the case amounted to "a serious breakdown in the ethical codes," and that she would consider imposing sanctions on the Homeland Security Department for misconduct.

"There was a decision made not to be truthful to the court," she said. Or the country.