Don't count on the Supreme Court

 

Gordon L. Weil

President Trump seems to be amassing constitutional and legal violations. We await the inevitable action by the Supreme Court to exercise its checks-and-balances power to reverse his excesses.

His actions are likely to be found extra-legal even by a court stacked with conservative justices.  It’s possible that, while Thomas and Alito may not shed their partisan loyalty, the other more responsible justices will give the law dominance over power politics.

Don’t count on it.

Five members of the Court made up the majority in favor of the broadest legal statement of presidential power ever in U.S. history.  While they were joined by Justice Barrett last July, she went along with all their assertions.

That decision was penned by Chief Justice John Roberts.  His support for an almost unchecked president suggests that he will not now support a fresh look at limiting Trump’s powers.  He is a true conservative who may well agree with Trump’s policies.

Trump’s questionable moves take two forms.  First, he declines to follow the spending priorities that are the essence of congressional appropriations.  Congress may authorize or reject spending proposed by the president.  The president must spend just what Congress decides and refrain from spending without authorization.

Yet Trump has cut back on approved spending to the point of virtually eliminating government agencies.  He recognizes that Congress alone can formally terminate an agency, but he gets the job done by shutting it down.   In effect, he exercises a line-item veto, despite the Supreme Court having ruled that presidents don’t have that authority.

He also seeks to subvert the plain language of the Constitution, supported by the Court, the legislative record and historical practice.  He wants to deny citizenship to children of illegal immigrants born in the U.S., known as birthright citizenship.  Their citizenship is “black-letter law,” an unambiguous statement in the Constitution.

Trading on popular opposition to easy immigration, Trump appears to believes that the goal justifies a manufactured interpretation of the clear words of the Constitution.

Beyond these two gambits, he also applies existing laws, including one that formed part of President John Adams’ infamous Alien and Sedition Acts, in ways not contemplated by their drafters nor consistent with historical understandings in Congress and among the states.

The principal reason he can take actions straining the essence of the laws is the compliant Republican majority in the House and Senate.  The GOP members allow his moves either because they share his impatience with democratic processes or because they fear that crossing him may cost them their seats.  Their hold on power may be slim, but it works.

That leaves the federal courts and ultimately the Supreme Court.  They become part of the political system, searching for legal coat hooks onto which they can hang their pre-formed opinions. 

If it ventures too far into political questions, the Court runs the risk of one day facing political retaliation, quite possibly by the addition of new justices to counterbalance the conservative majority.  Roberts obviously worries about direct assaults on the federal courts.

So, the Chief Justice tries to keep the Court rulings as narrow and technical as possible. The Court can support the president simply based on the supposed procedural failings of his opponents and not on the merits of the central question itself.  Such decisions are made on the so-called “shadow docket” where they can be made quickly and without reasons.

A good example is the decision that Trump can transport Venezuelans to El Salvador.  By 5-4, the Court allowed his action based on the failure of the Venezuelans, while being in the expulsion process to bring their case to the correct district court.  The Court said they had due process rights, but let the administration get away with violating that requirement.

In avoiding the substance of issues, the Court can let Trump act freely, while insisting it has lost no power.  In Roberts’ view, the Court should not get involved in essentially political disputes, but should leave them to the president and Congress, the political institutions.  If they are aligned, as at they are now, their will must be deemed the will of the people.

That sends the ultimate recourse back to the ultimate sovereign – the people.  That could mean that the 2026 congressional elections are the next time a decision to approve or disapprove Trump’s authoritarian approach.  Trump has shown the broad implications of his approach and a decision on it should be the central point of the campaign.

Easy talk about defending democracy does not convey the necessary message about the potentially wide reach of Trump’s rule.  To paraphrase a famous statement, if people do not oppose the injustice of authoritarian rule when it affects others, nobody will oppose it when it affects them.

Trump Doctrine emerges: America First, block China

 

The Trump Doctrine now takes its place in American history.

Trump joins presidents who adopted broad world policies that became identified with them.  President James Monroe warned that Europe should stay out of the Americas, creating the Monroe Doctrine.  President Harry Truman pledged U.S. support to governments opposing authoritarians, creating the Truman Doctrine (though probably repealed by Trump).

Both Monroe and Truman based their doctrines on the growing American power.  The Trump Doctrine recognizes the limits of American power.  It has become known thanks to Defense Secretary Pete Hegseth, the accidental model of transparency even about the most sensitive government planning.

The Trump Doctrine has two priorities: defending the American “homeland” and preparing for a potentially military confrontation with China.  These are Trump’s basics drawn from Project 2025, a conservative manifesto that he had denied even knowing about.

“China is the Department’s sole pacing threat, and denial of a Chinese fait accompli seizure of Taiwan — while simultaneously defending the U.S. homeland is the Department’s sole pacing scenario,” is Hegseth’s description of the core of the doctrine.

This strategy explains policies that Trump has pursued from the outset of his presidency.  The U.S. prepares to meet a “threat” from China, but it acts now to fulfill a “scenario” of security.

First, defend the 50-state homeland by increasing the buffer around it.  Add Canada and Greenland to create a new, expanded homeland, allowing the U.S. to defend against attack from the north.  Owning territory provides greater security than a mere alliance like NATO.

The original America First movement in 1940-41 preached that the Atlantic and Pacific Oceans were satisfactory buffers, but the new America First supplements them with territory.  The aspirations and values of other nations must be overridden to put this plan in place.

Second, casting any doubt aside, the Trump Doctrine makes clear that the U.S. would use military force to protect Taiwan from a Chinese attempt to seize it.  It makes clear that the principal threat to American security comes from China.  While this may be accurate, all measures short of a military buildup seem to have been ruled out.

What about the rest of the world?  Europe, the Middle East and East Asia defenses would largely be left to regional powers.  The U.S, would help them against threats from Russia, Iran or North Korea, but only within the limits of its resources after dealing with its top two priorities.

Though American policy would call these regional powers “allies,” their dependence on the U.S. for weapons and intelligence would make them something more like the “satellites” that surrounded the Soviet Union and which Putin seeks to recreate. 

Trump’s attempt to take over key elements of Ukraine’s economy in return for past American help against the Russian invasion is a prime example of this approach.  Trump wields the power of tariffs, weapons supply, and intelligence capability to force compliance.  He even demands that foreign suppliers to the U.S. drop their DEI programs.

Because his demands affect the sovereign powers of other nations, his Doctrine could encounter strong resistance.  Sensing any willingness by them to make concessions, he increases his demands.  Leaders may try personal flattery, but can end up appeasing him to avoid retaliation.  History reveals that appeasement fails to yield satisfactory results.

Canada’s Prime Minister Mark Carney shows he understands that appeasement will not work.  Measures to cut tiny Fentanyl flows or a trickle of illegal immigration have only led to greater U.S. demands.  Carney is taking a tougher line with Trump and is trying to rally Canadians to a sense of unity that will preserve the nation.

Britain and France are willing to defend Ukraine, though some other Europeans remain addicted to taking a free ride whether provided by Europe or the U.S.  If those two countries plus Germany and Poland form a core response, they must make some voluntary sacrifices instead of those demanded by Trump.  Ukraine already is making sacrifices for its survival.

Instead of a free world dominated by the U.S., a series of interlocking accords are likely to gradually develop.  A variety of alliances focusing on military planning, arms production, trade and intelligence could grow, though the U.S. would remain a needed partner. 

Given the obvious flaws in American intelligence security, a new version of Five Eyes could include Canada, Britain, Australia, New Zealand plus Germany, which has sought to participate. A deeper trade relationship with Europe could bring Canada a form of associate status with the EU and participation in the Anglo-French military “coalition of the willing.” 

Moves toward greater self-reliance by otter countries could require costly adjustments, but so would the Trump Doctrine.

The U.S. might reverse its policy, but trust in it has been deeply damaged.  Its cast-off friends cannot take any more risks and must create their own future.