When Trump Uses Power, Courts Balk, When Biden Did, They Bowed

Suppose two presidents exercise the powers of the executive branch. One does so under an explicit statutory grant during a time of declared emergency. The other acts pursuant to administrative discretion in the face of record-breaking border incursions. Now suppose that federal judges enjoin both policies. What happens next?

If the president is a Democrat, the Supreme Court stays the injunction. It instructs the lower courts to stay their hand, warning that questions of immigration policy lie chiefly with the political branches. It urges patience, careful deliberation, and above all, continuity of government operations while the matter is litigated.

If the president is a Republican, the result shifts. The very same Court intervenes preemptively to halt the executive branch entirely, even when the policy in question is grounded in a statute passed by Congress and signed into law over a century ago. That is precisely what has happened under the Alien Enemies Act in 2025.

The inconsistency here is not trivial. It cuts to the core of the rule of law. And the pattern is now unmistakable: a judicial monocle for Republican policies, and a telescope for Democratic ones.

Consider first the case of President Biden's expansive use of parole authority under the Immigration and Nationality Act. That provision allows the executive to grant temporary entry to foreign nationals on a case-by-case basis for urgent humanitarian reasons or significant public benefit. Yet under Biden, the "case-by-case" requirement was stretched to breaking. Hundreds of thousands of migrants were paroled en masse, ushered into the country through programs like "CHNV" for Cubans, Haitians, Nicaraguans, and Venezuelans. This administrative sleight of hand turned statutory exceptions into a parallel immigration pipeline.

Federal district courts saw the problem. They ruled that the programs violated statutory limits. One court even enjoined the Department of Homeland Security from continuing the parole effort. And yet, the Supreme Court stepped in, not to uphold the law as written, but to stay the injunction. The rationale? That immigration policy is a prerogative of the executive, and that litigation should proceed without disrupting operations. The Justices, in effect, told the lower courts to avert their eyes while the machinery rolled forward.

Fast forward to President Trump's return to office. In response to national security threats, Trump invoked the Alien Enemies Act, a statute enacted and amended by Congress, to detain and remove non-citizens from hostile nations. The statutory text is unambiguous. It authorizes the president, during times an invasion, to order the arrest and deportation of nationals from belligerent countries. It is not an elastic clause. It does not require rulemaking, notice-and-comment, or judicial review beyond habeas corpus.

Nonetheless, when President Trump acted pursuant to this explicit statutory authority, litigation followed in the usual progressive strongholds. Predictably, a district court expressed discomfort. But more remarkably, the Supreme Court stepped in not to shield the executive from premature disruption, but to impose one. In a midnight ruling, it paused enforcement entirely, halting deportations even of individuals who had already been afforded habeas hearings and found removable. This was not a stay of a lower court injunction. It was the Court itself enjoining the president.

Why the reversal? Why does the Court invoke executive primacy to bless parole pipelines but assert judicial supremacy to block wartime removals?

A defender of the Court might suggest factual distinctions. Parole and removal are different contexts, and each case is unique. But this evasion collapses upon closer scrutiny. In both cases, a president acted under color of federal immigration law. In both, litigation ensued. In both, district courts weighed in. But only one president was permitted to continue enforcement during litigation. The other was not. The judicial principle, if one can call it that, is not one of law but of partisanship.

The underlying logic, if made explicit, would read something like this: A Democratic administration should be allowed to set policy and operate unimpeded, even when the policy stretches statutory text beyond its apparent limits. A Republican administration, even when acting squarely within clear statutory confines, should be restrained at the earliest possible stage.

This is a dangerous logic. It transforms the judiciary from a check on government to an instrument of asymmetrical control. The Supreme Court has, in effect, adopted a kind of one-way ratchet. It blocks conservative executive action ex ante, while permitting progressive actions to run their course even when they lack firm statutory footing.

There is yet another example, one that highlights the deeper institutional disorder afflicting the judiciary itself. In Texas v. DHS, a group of 21 states led by Texas sought to stop the Biden administration from using mass parole to open the floodgates at the southern border. The district court in Texas granted a temporary restraining order, halting the administration's program. In contrast, a district court in Washington declined to do the same, on overtly political grounds. But here is the rub: the Texas court, although temporarily halting the program, ultimately ruled that Texas and the other states lacked standing. The judge, though critical of the administration's actions, followed the rule of law strictly, refusing to sustain a suit that lacked proper jurisdiction. A liberal judge, by contrast, would almost certainly have found standing had the policy been implemented by a Republican president. One need look no further than Judge Boasberg, who was explicitly overruled by the Supreme Court on the grounds that he lacked jurisdiction. Yet he continues to involve himself in the case, pressing forward despite the high court’s clear rebuke. The impulse is not to defer to law but to persist in a preferred policy outcome, even when the judicial branch has spoken. This reveals a troubling pattern, one in which liberal jurists operate as political actors first and legal arbiters second.

The real divide, then, is not merely legal but philosophical. Conservative judges may issue TROs when a statute is clearly being violated, but they are also far more likely to apply constitutional standing rules rigorously, even if doing so results in outcomes unfavorable to their policy preferences. Liberal judges, by contrast, often subordinate procedural integrity to political alignment. The former elevates law above politics. The latter subsumes law into politics.

That is the deeper crisis. The American people can elect a president with a clear mandate to enforce immigration law, secure the border, and restore sovereignty. But unelected judges, often imbued with partisan sympathies, can nullify that mandate through a jurisprudence of selective restraint. This is not what the Framers envisioned. Elections are supposed to matter. Statutes are supposed to bind. But in the current regime, judicial ideology too often overrides both.

The implications are not academic. In practical terms, this doctrinal asymmetry creates a regime where left-wing policy initiatives receive the benefit of the doubt, while right-wing ones are presumed unlawful unless proven otherwise. The default settings have flipped. And in a constitutional republic, where the separation of powers is meant to preserve liberty and constrain arbitrary rule, this is an inversion of first principles.

Of course, courts must sometimes intervene. They must enjoin unlawful conduct. But they must do so impartially. The timing of their interventions, the degree of deference they afford the executive, and the consistency of their reasoning must transcend the identity of the president. Otherwise, the robes of impartiality become garments of pretense.

The Court's defenders may protest that its rulings are technical, not political. But the timing betrays the claim. When Trump uses the Alien Enemies Act, a statute the Court itself has recognized as largely immune from judicial second-guessing just one week prior, the Court reverses course and freezes enforcement. Yet when Biden unrolls a sweeping parole initiative that looks nothing like "case-by-case" discretion, the Court counsels restraint. That is not judicial minimalism. It is judicial opportunism.

And it raises a foundational question: Do laws mean what they say, or only what judges wish them to mean? If the former, then the president’s lawful actions under a valid statute should be allowed to proceed unless a clear constitutional defect arises. If the latter, then our government is no longer one of laws but of robed overseers whose sense of political justice supersedes the people's laws.

One need not be a Trump supporter to find this troubling. One need only care about constitutional governance. The law must operate by fixed principles, not partisan sympathies. Otherwise, elections become mere pageantry, and statutes mere suggestions.

The judiciary's credibility hinges not on its robes, but on its restraint. If it will not apply the same standard to both parties, it has no business enforcing standards at all.

If you don't already please follow @amuse on 𝕏.