The Trump judicial review challenge, waged across dozens of federal courtrooms since January 2025, has produced a consistent answer from the bench: presidential authority is not beyond scrutiny. From the Alien Enemies Act to IEEPA tariffs, from National Guard deployments to the demolition of the White House East Wing, the Justice Department has argued time and again that the courts have no business examining the president’s decisions. Time and again, the courts have disagreed.
The Trump Judicial Review Challenge Over the Alien Enemies Act
The most constitutionally charged confrontation arose in March 2025, when the Trump administration invoked the Alien Enemies Act (AEA), an 1798 statute, to deport alleged members of the Venezuelan criminal organisation Tren de Aragua to a notorious Salvadoran prison. Presidential Proclamation No. 10903, published at 90 Fed. Reg. 13033 (2025), purported to authorise the removals by equating the gang’s presence in the United States with an “invasion or predatory incursion.”
Tren de Aragua had by then been designated a foreign terrorist organisation by the State Department, as recorded at 90 Fed. Reg. 10030 (2025). But the AEA applies only where a “foreign nation or government” has launched or threatened an invasion, and critics argued the gang was neither a nation nor a government.
When Judge James Boasberg of the U.S. District Court for the District of Columbia issued a temporary restraining order (TRO), the government’s lawyers filed a motion asserting that “the President’s authority and discretion under the AEA is not a proper subject for judicial scrutiny.” 238 Venezuelan detainees were flown to El Salvador on three flights before that order could take effect.
The Supreme Court intervened in a per curiam decision in Trump v. J.G.G., decided 5-4. The majority agreed that Boasberg lacked jurisdiction and vacated his TRO, concluding that AEA detainees must bring challenges through habeas corpus petitions in the district of confinement rather than under the Administrative Procedure Act in Washington. Crucially, as Lawfare has analysed, all nine justices rejected the government’s position that judicial review was unavailable altogether. Detainees retained a Fifth Amendment due process right to seek habeas relief before removal.
On 16 May 2025, in A.A.R.P. v. Trump, the Court enjoined the government from removing named plaintiffs or putative class members under the AEA pending further proceedings. The Justice Department nevertheless reiterated its unreviewability argument before the Fifth Circuit in June 2025, where Deputy Assistant Attorney General Drew Ensign described presidential determinations under the AEA as “not subject to judicial review” or, at most, subject to “extremely deferential review.” A divided Fifth Circuit panel rejected that position in September 2025, though the full court later agreed to rehear the case before dismissing it on mootness grounds.
Tariffs, National Guard Deployments, and the White House Ballroom
The administration’s position on tariff authority proved equally expansive and equally unavailing. Trump relied on the International Emergency Economic Powers Act (IEEPA), a 1977 statute that had never previously been used to impose tariffs, claiming it granted him unlimited power to rewrite the tariff schedule provided his emergency declaration was in place. The Justice Department told the Court of International Trade that the question of whether a threat was “unusual or extraordinary” was “reviewable only by Congress.”
Every court to consider the argument rejected it. The Supreme Court’s ruling in Learning Resources, Inc. v. Trump, 607 U.S. 229 (2026), settled the matter 6-3. Chief Justice Roberts, writing for the majority joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson, held that IEEPA’s authorisation to “regulate…importation” does not include the power to tax or raise revenue through tariffs, drawing on Gibbons v. Ogden for the proposition that tariffs are “a branch of the taxing power.” The majority noted the government could not identify a single statute in which Congress had used the word “regulate” to authorise taxation. Justice Gorsuch’s separate concurrence, confirmed by SCOTUSblog, applied the major questions doctrine to reject a claimed delegation of authority that was, in his assessment, both “unheralded” and “transformative.” Oral argument had taken place on 5 November 2025, with a majority of justices signalling scepticism toward the government’s rationale. Separate concurrences were filed by both Gorsuch and Barrett; Justice Kagan concurred in part.
On the National Guard, the administration argued before the Ninth Circuit that the president’s determination to call up Guard forces under 10 U.S.C. § 12406 was “not judicially reviewable at all.” The Ninth Circuit unanimously rejected that position, observing that applying the political question doctrine to statutory cases would “systematically favour” the president over Congress. The Supreme Court left a TRO in place 6-3 in Trump v. Illinois in December 2025.
The administration’s most striking claim came before the D.C. Circuit in June, when Principal Deputy Assistant Attorney General Yaakov Roth argued that even if the White House ballroom project were “complete lawlessness,” a court could not enjoin it because construction was already underway. Judge Patricia Millett pressed the point to its logical limit: if the government moved fast enough to demolish the Statue of Liberty, could nothing be done? “I think that’s right,” Roth replied. The D.C. Circuit, in an opinion joined by Judge Bradley Garcia, disagreed, ruling that the project required congressional authorisation.
Whether the administration’s habeas-corpus obligations under Trump v. J.G.G. are being discharged in practice remains the question most likely to return to the Supreme Court before the year is out.
