Does Trump act legally?

Gordon L. Weil

There’s a war going on.

This one’s not Ukraine or the Middle East.  It’s the quiet war being fought in the courts that could have a direct effect on many, if not all, Americans.  It’s major decision time for the Supreme Court, and it could set limits on the Trump regime or approve how it governs.

By June 19, at least 285 federal cases had been brought against the Trump administration by people and institutions claiming to have been harmed by government actions they argue violate the Constitution and laws.  President Trump’s executive orders since his inauguration (at least 163) have set a record, but so have challenges to them.

The federal courts are entangled in resolving complaints that the president has gone too far.  Has he violated the Constitution?

Here’s how the system works as Trump cases move up to the Court. 

A legal action is begun in one of the 94 federal district courts.  Because the court must issue a reasoned judgment in each case, it may suspend the Trump move by issuing an injunction until the judge can reach a conclusion.  The Justice Department may not wait and instead go to one of 13 courts of appeal to get that suspension lifted.  Or it may go directly to the Supreme Court.

If an injunction is lifted, the plaintiff, possibly harmed by the Trump-Musk actions, may be left jobless or slated for expulsion from the country.  Entire agencies may be functionally abolished.  But decisions may take months and meanwhile, the Trump policy would remain in effect. 

District courts judges may make careful decisions on the legality of Trump’s actions after early hearings and prompt rulings.  If they decide against the president, he then requests that their injunctions should be suspended while appeals are considered.

When a court lifts a court suspension on Trump or grants him one, it will usually rely on a finding that Trump is likely to win when the case is decided.  Thus, a case may be finally decided procedurally by allowing it to go into effect even if it has not reached a formal decision that itself could be appealed and take more time.

The Supreme Court often uses this so-called procedural “shadow docket.”   In the current term beginning last October, it has issued 102 such decisions, not all on Trump, but only 57 formal opinions. 

By the time a final decision is made, the plaintiff may have been expelled from the country or lost their job.  University-based scientific research might have been halted.   An innocent person may have been held in harsh detention.  Yet no court has acted against any government official who violated a direct court order protecting a person’s due process right.

The Supreme Court is now in the final days of its current term.   As usual, it has left some of its most important decisions until the end, though this dramatic delay may be artificial.  Here are some key points to watch for.

Chief Justice Roberts likes to emphasize that the Court stays out of politics. He may find ways to agree with Trump, while avoiding making major decisions.  He threads his way along procedural paths that make decisions look both narrow and legally unquestionable. The result can confirm the Trump policy without saying so.

The Court may appear to make decisions giving satisfaction to both sides.  This may happen in the landmark decision expected on birthright citizenship.  Trump claims that, despite a clear statement in the Constitution, his administration can use a provision designed to exempt the children of foreign diplomats to deny citizenship to children born in the U.S. to illegal entrants.

It would be surprising if the Court agreed with Trump.  But it has signaled that it is focusing on the ability of a single district court to make a ruling of a nationwide effect, as happened in this case.  This has frequently happened to Trump orders.  The Court could give some comfort to Trump by somehow pulling back on the district courts’ powers.

A recent appeals court decision, by a panel with a majority of his appointees, rejected his claim that his powers are so absolute that the court should not even hear a case.  Even though it approved his actions, it said that the president must obey the laws enacted by Congress.   

The Court might narrow the scope of its broad grant of presidential powers, given in Trump v. U.S. last July.  Undoubtedly, Trump uses that decision as his basis for ignoring the Constitution and laws when issuing his executive orders.  Or the Court could boost his powers, by reinforcing its earlier decisions that he can fire members of independent regulatory bodies. 

In the next ten days, the Supreme Court could bring the war in the courts to a new level.