Donald Trump’s efforts to ‘wrest power’ from America’s courts and Congress ‘unprecedented’ and ‘authoritarian in nature’

Donald Trump’s efforts to hoard power for himself, usurping it from the courts and US Congress, is “unprecedented”, an expert has warned.

Donald Trump’s disregard for the rule of law and attempts to hoard power for himself are “truly alarming” and “authoritarian in nature”, an expert has warned.

And they are escalating.

Dr Kathryn Schumaker, a senior lecturer in American Studies for the United States Studies Centre at the University of Sydney, told news.com.au the Trump administration had spent its first months trying to “wrest away power” from Congress and the courts.

“The disregard the Trump administration has for the rule of law is truly alarming, and it is on a scale that has never been seen before in US politics,” Dr Schumaker told news.com.au.

“Other presidents have ignored the courts – Andrew Jackson’s policy toward Native Americans is the clearest example.

“But the sheer number of executive orders issued by Trump that attempt to dictate law and policy, where the executive branch does not have that authority, is unprecedented.”

Donald Trump’s actions are “unprecedented”. Picture: Saul Loeb/AFP

‘A clear violation’: Trump’s most brazen move

It’s most blatant in the administration’s immigration policies.

Dr Schumaker pointed, in particular, to Mr Trump’s invocation of the Alien Enemies Act, a law from 1798, to justify his deportation of migrants without due process.

“His administration is claiming sweeping authority under the executive’s war powers by making specious claims that the US is being ‘invaded’ by immigrants and fentanyl,” said Dr Schumaker, adding that the Alien and Sedition Acts were “highly controversial” even in the era during which they was passed.

The Enemies Act has only been used three times before, during the War of 1812, World War I and World War II.

“Thomas Jefferson, author of the Declaration of Independence, and James Madison, who wrote the US Constitution, were some of the most vocal critics of it as an unconstitutional overreach of federal power,” she said.

“Jefferson and Madison argued that these laws were so abhorrent to the letter and spirit of the US Constitution that states had the authority to nullify and refuse to enforce them.”

In this case, the obvious problem is the Trump administration invoking a wartime law when the United States is not, in fact, at war.

Mr Trump claims the deportees are members of foreign gangs, and therefore equiavelent to enemy nationals during a war. Picture: Brendan Smialowski/AFP

“Trump’s executive orders have had devastating consequences in many areas, but the human cost of these policies is most apparent in immigration. Trumps administration is disregarding basic constitutional rights, including the right to due process of law,” said Dr Shumaker.

“Every person in the United States is supposed to be afforded the right to due process, regardless of immigration or citizenship status, per the Fifth and Fourteenth Amendments to the Constitution.

“We have seen what happens when people are denied due process – Juan Abrego Garcia was wrongfully deported and is incarcerated in El Salvador, and over the weekend the news broke that, evidently, a two-year-old US citizen was deported to Honduras.”

The two-year-old in question has an American father and Honduran mother. It seems the Trump administration deported the toddler with her mother and 11-year-old sister. A hearing has been scheduled for May to deal with a judge’s “strong suspicion the government just deported a US citizen with no meaningful process”.

Mr Abrego Garcia was sent to El Salvador, where he is now being held in the country’s notorious Cecot megaprison, otherwise known as the Terrorism Confinement Centre.

He had been an illegal immigrant to the United States, but was later subject to a court order forbidding the government from deporting him, due to fears for his safety in El Salvador. The government has conceded, in court, that he was deported due to an “administrative error”, but the White House has indicated it has no intention of bringing him back – a stance that also defies court orders.

He is married to a US citizen, with whom he shares a disabled child.

“Things like this are happening because the Trump administration is loading people on planes before a court can determine whether the deportation is legal or not,” said Dr Shumaker.

“This is lawless behaviour on the part of immigration officials. It is a clear violation of the principle of due process of law.”

A cohort of migrants deported from the US arriving at El Salvador’s Cecot prison. Picture: El Salvador’s Presidency Press Office/AFP

‘Authoritarian in nature’

Immigration, of course, is not the only area of government conduct at issue here.

For example, the Constitution explicitly gives Congress, not the executive branch, power over federal government spending. The DOGE team appointed by Mr Trump is asserting a right to cut that spending unilaterally, and to shut down congressionally approved programs.

So that’s a usurpation of the legislative branch’s powers.

Trump officials have kept asserting that Mr Trump, not the court system, should be the ultimate authority on which actions taken by his administration are constitutional.

That is a usurpation of the judicial branch’s powers.

“Trump’s actions are authoritarian in nature,” Dr Shumaker said.

“His administration is attempting to consolidate power in the executive branch, wresting away power from the courts and especially from Congress. I do not think Congress is doing enough to assert its authority to check the Trump administration.

“Immigration is a clear example of this. Congress can and should legislate in this area – but the same is true for the massive funding cuts that the administration has made via DOGE and other avenues.

“Congress holds the power of the purse. These are funds that were allocated by Congress, and yet the Trump Administration is acting as if the executive branch holds that power.

“The judiciary and the legislative branch can and should rebuke this, but the Trump administration seems determined to ignore judicial rulings and statutory law. This is why critics have accused the administration of authoritarian impulses.”

Congress is not trying to reassert its own power. It is controlled by Mr Trump’s party. Picture: Mandel Ngan/AFP

Anti-judge campaign ‘escalates’

There is an unmistakeable hostility, from both Mr Trump himself and the rest of his administration, towards judges who rule against him. This isn’t new – the President has been calling certain judges corrupt since he entered politics. But the rhetoric is getting harsher, while the administration is threatening to act.

In the past few days, for example, the FBI arrested Hannah Dugan, a judge in Wisconsin. It claims she obstructed the arrest of an illegal immigrant. This arrest was accompanied by what might be described as a concerted PR campaign.

“What is happening to our courts is beyond me,” said Attorney-General Pam Bondi, America’s top law enforcement officer.

“They’re deranged.”

No one is above the law pic.twitter.com/TSrQ4GNMdA

— FBI Director Kash Patel (@FBIDirectorKash) April 26, 2025

Dr Schumaker agreed that this arrest marked “a significant escalation”.

“It seems that Trump is not satisfied to have appointed a huge number of federal judges and three Supreme Court justices – he is also attempting to intimidate the entire judiciary. It seems the administration hopes other judges, fearful for their own personal safety, will rule in ways that give Trump yet more power,” she said.

Too many Americans ‘not bothered’

You may read this wondering why Australians should care about the Trump administration, across the Atlantic, pushing these longstanding boundaries.

“These issues already affect anyone on a visa attempting to enter the US or stay there,” said Dr Schumaker.

“We have already seen stories of visas and permanent residency being revoked, as has happened to university student protesters who are critical of Israel’s actions in Gaza. But we have also seen stories of Australians being detained and deported without a clear reason.

“There’s a bigger issue, too, of how the actions of the Trump administration might embolden other right-wing parties and undermine democracies in other parts of the world.”

Mr Trump’s actions risk “emboldening” other right-wing parties around the world. Picture: Saul Loeb/AFP

Meanwhile, the fact that so many Americans seem to not be particularly “bothered” by this “authoritarian streak” will make Mr Trump’s power grabs harder to restrain.

“Even though the Trump administration’s actions are shocking to many observers, it seems that a large portion of Americans are not bothered by what is happening,” she noted.

“His approval rating is falling, but the most recent AP/NORC poll shows that 46 per cent of Americans polled approve of his immigration policy. That’s nearly half of everyone polled! It appears that many Americans are not bothered by Trump’s authoritarian streak.

“I think this shows just how fragile US democracy is at the moment. If such a large proportion of people don’t think the rule of law matters, then it’s going to be very difficult for an effective response to come through traditional political mechanisms.”

Originally published as Donald Trump’s efforts to ‘wrest power’ from America’s courts and Congress ‘unprecedented’ and ‘authoritarian in nature’