Muslim World Report

DOJ's Stance on Trump's National Guard Powers Sparks Legal Concerns

Dr. Anthony Lindsay | Jun 18, 2025 12:38 PM | 7 min read | 1320 words

TL;DR: The DOJ’s recent stance suggests that courts cannot challenge a former president’s decisions regarding the National Guard. This raises significant concerns about unchecked executive power and may alter the framework of judicial oversight, impacting democracy both in the U.S. and internationally.

The Unchecked Power of Executive Decisions: A Critical Examination

The Department of Justice (DOJ) has taken a stance that could profoundly reshape the boundaries of executive power in the United States, particularly regarding the deployment of the National Guard during national crises. In the aftermath of the January 6, 2021, Capitol riots, the DOJ argued that courts lack the authority to challenge a former president’s decisions on National Guard deployment. This assertion emerged from a lawsuit initiated by California, which contended that Donald Trump exceeded the constitutional limitations typically imposed on a sitting president.

Implications of the DOJ’s Stance

The implications of this position are enormous:

  • Impunity for Former Leaders: It implies that former leaders can act without judicial oversight during emergencies.
  • Threat to Checks and Balances: This raises critical questions about the foundational checks and balances in the U.S. governance system (Huq & Ginsburg, 2017).
  • Concerns about Authoritarianism: This erosion of judicial checks invites concerns over authoritarianism, not just domestically but in various countries globally, where similar narratives have been used to consolidate power (Mudde & Kaltwasser, 2018).

Recent events highlight a troubling trend toward selective application of the rule of law. The DOJ’s support for Trump’s actions reflects a broader pattern where aggressive policies are defended by officials who prioritize political loyalty over constitutional principles (Grant & Keohane, 2005). Such dynamics exploit crises for political gain, further entrenching division and strife both domestically and internationally. Observers must critically assess how these evolving narratives impact the rights and liberties of marginalized communities and the global perception of U.S. governance.

What If the Courts Get Involved?

Should the courts engage with the DOJ’s assertions, the ramifications could fundamentally shift the balance of power in American governance. A decisive ruling against the DOJ could:

  • Reaffirm Judicial Authority: It would reaffirm the courts’ ability to check executive overreach (Freeman & Rossi, 2012).
  • Re-evaluate Emergency Powers: This may lead to a re-evaluation of the limits placed on emergency powers, ensuring that executive actions affecting public safety and civil liberties remain accountable.

Furthermore, a ruling against the DOJ could invigorate public trust in the judiciary, positioning it as a defender of democracy rather than an extension of executive power. Should the judiciary assert its role effectively, it could catalyze a broader movement demanding transparency and accountability from all governmental institutions (Houle & Hekim, 2018).

Conversely, if the judiciary affirms the DOJ’s stance, it would set a dangerous precedent. Future presidents could bypass judicial review during crises, undermining decades of legal precedent designed to maintain checks on presidential power (Huq & Ginsburg, 2017). This would embolden leaders globally who aspire to concentrate power, destabilizing international norms regarding governance and human rights.

Thus, the courts’ eventual decision will resonate beyond U.S. borders, influencing how power is wielded and contested in other nations. The importance of judicial engagement cannot be overstated, as it sets a benchmark for upholding democratic values in times of crisis.

What If Congress Takes Action?

If Congress mobilizes in response to the DOJ’s stance, the implications could shift dramatically. Legislators might introduce measures aimed at:

  • Limiting Executive Power: Establishing clear guidelines for National Guard deployment during declared emergencies.
  • Ensuring Legislative Oversight: Ensuring future decisions are subject to legislative scrutiny (Oren Gross, 2003).

Such action could revive discussions around the War Powers Act, originally designed to assert congressional control over military engagements, and foster a reevaluation of executive power and the institutional roles of each government branch (Lee, 2010).

Crucially, if Congress can unite across partisan lines, it could:

  • Foster Accountability: Send a potent message that American democracy is committed to its foundational principles, even amid unprecedented challenges (Kumar, 2024).

However, the risk remains that Congress may be too fragmented or politically motivated to mount a serious challenge. Inaction would underscore a troubling trend of complacency, allowing the erosion of democratic norms to continue unchecked.

For Congress to act decisively, it must contend with competing interests favoring executive action over legislative deliberation. Legislators must push back against the notion that crises require unencumbered executive authority, advocating for a collaborative governance approach that respects democratic principles.

What If Public Opinion Shifts?

The rising tide of public opinion could serve as a significant counterbalance to the narrative established by the DOJ and executive actions. If citizens mobilize en masse to express concerns regarding unchecked executive power, it could lead to:

  • Powerful Calls for Accountability: Pressure on both elected officials and the judiciary to act against potential overreach (Bressman, 2007).
  • Organized Dissent: Grassroots movements, advocacy campaigns, and public demonstrations could manifest in rallies, petitions, and organized dissent, creating a mosaic of resistance.

Should public sentiment turn against the current trajectory, it might compel legislators to take more decisive actions, potentially leading to reforms that restrain executive authority. An engaged and organized public would rejuvenate civic engagement as a necessary check on governmental power (Walton, 2006).

Conversely, a lack of public engagement could close the window for reform. Disinterest or apathy would signal acceptance of the status quo, allowing political actors to continue consolidating power unchecked, ultimately stifling democratic processes and civil liberties (Gatignon & Anderson, 1988).

Strategic Maneuvers: A Path Forward

Given the current landscape, various stakeholders must consider their strategic responses to the challenges presented by the DOJ’s justification for unchecked executive power.

For the judiciary:

  • Maintain Integrity: It must assert itself as a check on executive authority, rejuvenating public trust in legal institutions and reaffirming commitment to civil liberties and the rule of law (Fallon, 2013).

For Congress:

  • Enact Reforms: There is an opportunity to enact reforms that clearly delineate the limits of executive authority during national emergencies. Lawmakers must engage in bipartisan discussions to craft legislation that curtails executive overreach while revitalizing legislative power (Freeman & Rossi, 2012).

Civil society organizations and activists play a critical role in:

  • Mobilizing Public Opinion: Harnessing grassroots movements to educate the populace about the importance of checks on executive authority (Esty, 2006).

In light of the DOJ’s assertions regarding executive power, the stakes have never been higher. Each entity—judicial, legislative, and civil society—must confront these challenges head-on, striving toward a cohesive strategy that ensures accountability, transparency, and adherence to the rule of law. The evolving dynamics of governance demand persistent vigilance and active engagement from an informed citizenry committed to safeguarding the foundational values of democracy.

References

  1. Bressman, L. S. (2007). Deference and Democracy.
  2. Cox, G. W., & Morgenstern, S. (2001). Latin America’s Reactive Assemblies and Proactive Presidents. Comparative Politics.
  3. Esty, D. C. (2006). Good Governance at the Supranational Scale: Globalizing Administrative Law. The Yale Law Journal.
  4. Fallon, R. H. (2013). Interpreting Presidential Powers. Duke Law Journal.
  5. Gatignon, H., & Anderson, E. (1988). The Multinational Corporation’s Degree of Control over Foreign Subsidiaries: An Empirical Test of a Transaction Cost Explanation. The Journal of Law Economics and Organization.
  6. Gross, O. (2003). Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional? The Yale Law Journal.
  7. Huq, A. Z., & Ginsburg, T. (2017). How to Lose a Constitutional Democracy. SSRN Electronic Journal.
  8. Kumar, S. (2024). Judicial Activism vs. Judicial Restraint: Balancing the Role of the Courts in a Democratic Society. Indian Journal of Law.
  9. Kornai, J. (2015). Hungary’s U-Turn: Retreating from Democracy. Journal of Democracy.
  10. Lee, F. E. (2010). Senate Deliberation and the Future of Congressional Power. Political Science & Politics.
  11. McGarity, T. O. (1992). Some Thoughts on “Deossifying” the Rulemaking Process. Duke Law Journal.
  12. Moyn, S. (2020). The Court Is Not Your Friend. Dissent.
  13. Moustafa, T. (2014). Law and Courts in Authoritarian Regimes. Annual Review of Law and Social Science.
  14. Mudde, C., & Kaltwasser, C. R. (2018). Studying Populism in Comparative Perspective. Comparative Political Studies.
  15. Walton, J. (2006). Presidentialism in Latin America. Latin American Research Review.
← Prev Next →