Supreme Court Faces Growing Pressure Over Executive Orders

President Trump’s use of executive orders is facing strong legal resistance, prompting a rare public warning from Justice Brett Kavanaugh about the growing reliance on presidential directives over legislation.

Key Facts:

Supreme Court Justice Brett Kavanaugh spoke at the Eighth Circuit judicial conference on Thursday.
He warned about the rise in executive orders from presidents of both parties over the past 20 years.
Kavanaugh noted these orders are increasingly challenged in court, often via emergency requests.
The Supreme Court is issuing more interim written opinions, which he said risk creating premature “lock-in.”
Kavanaugh described strong “collegiality” among the nine justices, calling them “patriots” and “good people.”

The Rest of The Story:

Justice Brett Kavanaugh addressed the growing trend of presidents relying heavily on executive orders during his remarks to the U.S. Court of Appeals for the Eighth Circuit.

He pointed out that the executive branches under Presidents Obama, Trump, and Biden have increasingly turned to executive actions and regulations to push their agendas.

“I think presidents, whether it’s President Obama – I think the phrase was ‘pen and phone’ – or President Biden or President Trump, have really done more of that, and those get challenged pretty quickly in court,” he said, according to CNN.

Kavanaugh noted the Supreme Court has been issuing more written opinions even for emergency docket matters.

He expressed concern that doing so too early might cause a “lock-in effect” that doesn’t represent the final legal stance of the Court.

He also described a strong sense of mutual respect among the justices, saying, “We look out for each other… We’re all patriots.”

Commentary:

Herein lies the issue. Executive orders were designed as temporary directives to help a president act swiftly in specific situations—not as long-term substitutes for lawmaking.

Yet for the last two decades, presidents have used them to bypass Congress, pushing policies that should go through the legislative process.

The Obama administration’s “pen and phone” strategy set a tone that has only escalated. Trump has leaned heavily on executive orders in his second term, attempting to advance key parts of his agenda as legal challenges pile up.

But just like his predecessors, his orders are being blocked or delayed through constant court filings.

This creates a whiplash effect. One administration issues executive orders, the next rolls them back. The courts get flooded with emergency filings.

And the Supreme Court, as Kavanaugh hinted, is being pulled deeper into policy fights with little time for full deliberation.

The problem isn’t just the use of executive orders—it’s the lack of congressional action. The GOP currently controls both the House and the Senate.

There is no excuse for failing to codify Trump’s major policies into law. If Republicans truly want Trump’s agenda to last, they need to do more than cheer from the sidelines.

Relying on the courts to hold the line is risky and unsustainable. Emergency dockets are meant for urgent, temporary issues—not to constantly referee partisan policy clashes.

SCOTUS should not be expected to act as a backstop for a party that refuses to legislate. Kavanaugh’s remarks serve as a warning—not just to the executive branch, but to Congress.

If lawmakers don’t step up, they risk turning every administration into a pendulum of executive fiat.

The Bottom Line:

Justice Brett Kavanaugh voiced concern over the expanding role of executive orders, noting their legal vulnerability and the burden they place on the courts.

With Trump’s agenda under attack, the conservative-led Congress must act to enshrine policies through legislation.

The current approach—govern by executive order, defend in court—is a gamble that weakens long-term stability.

Supreme Court Faces Growing Pressure Over Executive Orders

Key Facts:

The Rest of The Story:

Commentary:

The Bottom Line:

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