As someone once said: “Houston, we have a problem”. Except that in this instance many Americans see the problem as a solution. They see an untrammelled Trump presidency as the way to get things done.

And It’s true. Unfortunately, the things being done are not being done for the benefit of the Country as a whole, but rather for the benefit of a limited section of the population – mainly, the very rich.

His ‘One Big Beautiful Bill’ has now been passed, despite the best efforts of the Democratic minority in both houses. Hats off to the leader of the Democrats in the House of Representatives who managed to speak for a record-breaking eight and a half hours, bringing his speech to an end in an oratorical style worthy of Martin Luther King. All unfortunately to no avail: the Bill was passed anyway.

And all this was achieved with the smallest of majorities in both houses – in the Senate, only thanks to the casting vote of its speaker, one J. D. Vance.

So tight is the hold which the Donald has over what used to be the Republican Party, now remade in Trump’s image, that he has become almighty. The original version of the bill even contained a provision exempting him from the consequences of ignoring court rulings. It said that neither he nor any other part of the executive should be held in contempt. This was later withdrawn in view of the fact that it is a budget bill – meaning that non-budget matters may not be contained in it.

That though was replaced with a proviso regarding what would happen if anyone had the temerity to ask the court both to declare a government action illegal and also to impose a restraining order on that action until the merits of the case had been finally decided. The plaintiff would have to provide a bond equal to the amount of loss the government would suffer if the plaintiff’s case ultimately failed. This could of course have amounted to millions or billions of dollars and so would effectively have blocked any such application.

In turn, this would have permitted the government to act illegally, completely unconstitutionally and with impunity until the case eventually, some years later, wound its way to the Supreme Court. By that time much irrevocable damage could have been done, whether by way of illegal deportations, refusal to recognise citizenship, or a hundred other things already contained in the profligate issue of executive orders bearing Trump’s ‘Sharpie’ signature.

That particular provision was in the end dropped, not though because of any thought as to its unconstitutionality. It was because the Supreme Court has rolled over. It has declared that the legal system itself is toothless against such conduct.

How so? Interpretation of the law in the Supreme Court has now been taken over by what was, until relatively recently, regarded as a fringe school of thought. It is ‘Originalism’.

This is the legal theory which bases constitutional, judicial, and statutory interpretation of a text on the original understanding of it at the time of its adoption.

Proponents of the theory object to any form of judicial ‘activism’ - any attempt to interpret the constitution or statutes in a way more suited to the modern era, with its vastly different problems and societal norms.

And so the court has now pointed to the fact that it was the Judiciary Act of 1789 which gave federal courts jurisdiction over “all suits...in equity”. They say that still today, this statute “is what authorises the federal courts to issue equitable remedies”, such as injunctions.

The Supreme Court in fact held in a case decided in 1999 that this wording encompassed only those sorts of equitable remedies which were “traditionally accorded by courts of equity at our country’s inception”. In other words the law as it was in England at the time of the founding fathers’ escape from the rule of mad King George. They do not consider that the subsequent developments in the law of equity by the American courts over the centuries are valid. They are all now scrapped.

The issue of the very many ‘beautiful’ executive orders by Trump however resulted in even more requests to the courts for injunctions to prevent them being acted on.  The lower courts were only too ready to grant injunctions against a government seen as doing things which were obviously wholly unconstitutional. And the Appeal courts have usually upheld those decisions.

One case, however - TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. CASA, INC., ET AL. reached the Supreme Court in record time and the decision was handed down on 27 June. It related to Trump’s declaration as to who could be regarded as an American citizen - ‘obviously’ not the children of undocumented immigrants.

No-one seriously thinks that this is in line with the constitution and that was not even argued by Trump’s lawyers before the Supreme Court.

The argument instead centred exclusively on a procedural question: whether the Courts had the right to issue injunctions having national effect.

Before 1789 no universal injunctions had been issued by our English courts. Injunctions had only been granted to prevent individuals from doing things, not to prevent governments from doing things which could affect all its citizens. And so the question was limited to the Court’s right to issue universal injunctions. And they decided that they had no such right. It had not been expressly conferred upon them by Congress in 1789. This notwithstanding that the very essence of the law of equity is its adaptability.

Both states and individuals were parties to the application. Individuals applied because their offspring might be denied citizenship. States were in a more complicated position. They contended that citizen-dependent benefits programs could not be administered efficiently without a blanket ban on the enforcement of the Executive Order. Children often move across state lines or are born outside their parents’ State of residence. Given the cross-border flow, the States said, a “patchwork injunction” would prove unworkable.

The Supreme court accepted that an injunction should be granted where it was required to give the plaintiff the ‘complete relief’ which was required. In the case of an individual, the grant of an injunction requiring the government not to treat him or his children as not entitled to be citizens is obviously ‘complete relief’.

The States’ position was more complicated and so their contention has been referred back to the lower courts for a decision as to what relief is appropriate. No doubt it will be appealed if not in line with Mr Trump’s wishes.

In the meantime, as one of the dissenting opinions pointed out, individuals can of course apply for an injunction for their own individual benefit. They can do that … provided they have the money to pay for an attorney and providing the courts are not clogged up with the multiplicity of applications made.
For those without the means, though, they will have to live with the anti-constitutional rules contained in the executive orders until, in three or four years time, the Supreme Court decides on their validity. By then, however, someone whose citizenship has not been recognised may well have been (unlawfully) extradited.

Putting it in a wider context, it means that although the rich will probably be able to look after themselves, the rest will be subject to the whims of a capricious president. For them, whatever he says will not be capable of being challenged in any meaningful way. His word will be the de facto law until the end of his presidency. The absolute power of a king.

4 July 2025

Paul Buckingham