The Distinction Between Law and Policy And The Role of The Courts

Policy Summary: The beginning of President Trump’s second term saw a slew of executive orders on a number of policies and also saw numerous responses to those orders. More than two hundred legal challenges have been brought to oppose the implementation of these executive orders. The results have been mixed. At times, courts have upheld actions the Trump Administration has supported (just this month the Supreme Court has upheld Trump’s actions to bar transgender troops from the military). While at other times courts have rendered decisions that the Trump Administration opposes (a Rhode Island judge’s order to temporarily resume federal funding for certain foreign aid programs, the Supreme Court’s temporary order to bar deportation flights from Texas). Despite this uneven record the Trump Administration has lashed out at the courts for not being supportive of the agenda the Administration is trying to pursue. One statement that the Administration has used is “judicial tyranny” to describe the legal environment in the United States today.

In March, Chief Judge Boasberg ordered deportation flights to turn around and return to Texas. The planes did not but it still led to some calls for the judge to be impeached. Chief Justice John Roberts then issued a rare statement that said, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” Roberts also this month stated that the job of the judiciary is “to check the excesses of Congress and the executive.”

That led to a response from Vice – President J.D. Vance who called the statement from the Chief Justice “a profoundly wrong sentiment.” This followed the Vice – President’s remarks in February where he stated on X “Judges aren’t allowed to control the executive’s legitimate power.”

While these competing statements and others concerning the power and independence of the judiciary continue, attacks on judges and the judiciary are ongoing.

Policy Analysis: The Chief Justice had anticipated inflamed rhetoric against the judiciary in general and against court personnel. At the end of 2024 in December, the Chief Justice issued his annual report on the state of the federal judiciary where he denounced violence directed toward federal judges and wrote that attempts to intimidate judges for rulings we disagree with were “inappropriate and should be vigorously opposed. The Chief Justice is correct in stating that judges should be free to perform the duties of their job free from threats of violence, harassment and intimidation.

But there is an element not being aadressed in this discussion of judicial independence and judicial deference to executive power and that is the distinction between law and policy. The comments made by Vice – President Vance implies that because a majority of the voters who voted for Donald Trump and Republicans that the President and the White House should have free reign to implement their policy agenda. But what the Vice – President misses here and what the Chief Justice never brought up is that law and policies are not the same. The laws of this country – the Constitution, the federal statutes and case law – provide the legal framework about how the government can act. If the government simply ignores the boundaries that the law has provided, then there would be no reason for any administration – Republican or Democrat – to follow the law. Policies on the other hand, are the chosen ways that an administration choses to enact a particular government goal. This means that a certain policy – for example, immigration policy – can be implemented in any number of ways. There is no set way to put immigration policy in practice; that would be at the discretion of the administration in power with the caveat that the implementation be done within the bounds of the laws on the books.

It appears that the Vice – President has made an error and thinks that laws are the same as policies when they are in fact not. Because certain immigration executive orders have been temporarily put on hold the Vice – President believes that courts are not allowing the administration to implement the will of the people. But he gets this wrong because the courts have not stated that no immigration policy can be implemented at all.

The Trump Administration can still implement an immigration policy. It just can’t use the one it has chosen at the moment because in some manner the policy does not follow the current laws and is therefore legally defective. That determination comes from a court of law which should be for the most part unbiased. A court is much more well – versed in the legal framework and it is up to the court to explain why a certain policy may be outside the accepted legal framework. A court of law has nothing to do and does not abide by the will of the people but simply compares the contested policy with the law and determines if it can go forward or must be blocked. There is no reason for it to defer to the executive branch because its duty is to reign in an individual or government branch if they stray too far outside the bounds of the law.

 Too often IT many important cases about policies are brought before a court of law to decide and ordinary folk often believe that a court is deciding on the propriety of a certain policy. But that is not the case. A court simply decides if the policy is legally permissible under the law while political actors decide on the best course of action to take to implement a policy within the law. If the Vice – President can understand this distinction, then he and this Administration can understand why courts and the Supreme Court have handed down the decisions that they have. Courts are not blocking a policy entirely but are instead saying it cannot be done in this manner and must be modified to comport with current law. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources 

U.S. Supreme Court – the high court’s 2024 report on the state of the federal judiciary.