Trump “packed” Supreme Court

 

Trump “packed” Supreme Court

Its gains new executive power

Gordon L. Weil

 

The Democrats might gain majority control of the U.S. Senate in January 2027.  They could then block President Trump’s judicial appointments.  To avoid their filling vacancies in the Court’s conservative majority, some right-wingers have suggested that the two oldest justices – Clarence Thomas and Samuel Alito – should quickly retire, opening the way for younger replacements.

These resignations would follow a pattern of questionable Republican election-year moves to ensure a conservative majority.  The GOP-controlled Senate refused to consider an Obama nominee more than a year before the 2016 presidential election, later approving a Trump nominee.  It also rushed through a Trump nominee only a month before the 2020 election.

Presidents usually appoint Supreme Court justices holding views consistent with their political philosophy.  Trump has increasingly sought justices who not only align with his usually conservative views, but who will loyally back his policies. 

He gives greater weight to loyalty than to competence.  He has turned against the Federalist Society, a major source of conservative and competent lawyers named as his judicial appointees.  Because some had ruled against his policies, he now favors potential judges who are more closely aligned with MAGA.

The U.S. Supreme Court has taken over the legislative responsibilities of Congress, whose members would cling to their seats rather than taking on the risks of lawmaking. A Trump Court, dominated by his faithful, is adding executive style functions.

The New York Times has recently revealed that the Court is taking over executive authority without the usual judicial trappings.  It has uncovered the story of the Court’s “phantom docket,” which allows for rapid decisions with little or no thoughtful testimony or discussion.  Phantom docket decisions are often made before any lower court has ruled. 

With this shortcut, the Supreme Court becomes the only federal court making decisions on many major cases.  Only when it plans to confirm the decision of a lower court or simply wants to delay publishing its own conclusion, it may allow a case to progress normally or even to drag on for months.

The shadow docket began in 2016, even before Trump’s first presidential victory.  A year earlier, the Court had ruled against an Obama EPA decision, only to be told that it had already been implemented.  Obama then ordered the Clean Power Plan. When a court did not suspend it until the case concluded, the Supreme Court backed an unusual appeal for delay.

Memos among the justices show that Chief Justice Roberts, peeved by the earlier case, asserted that the Court would eventually decide against Obama and opposed delay.  He accepted claims that the Plan would cost hundreds of millions of dollars.  In fact, much of it was implemented voluntarily at no additional cost, but the Court had boldly asserted a new kind of authority.

Having done it once, it was easy for the jurists to keep using the procedural tool of refusing to suspend a Trump move, which has made it a part of the executive process. In practice that meant the policy could be pursued until much later, making the final reasoned decision almost pointless.  The procedural order functioned with the same effect as a later decision might.

It was somewhat like the saying, “Don’t confuse me with facts; my mind’s made up.”

The shadow docket has expanded.  The Court may refuse to suspend presidential executive orders, giving them a stamp of approval when there has been no legislative action.  In all such cases, the Court process, which traditionally has allowed for all sides the argue their case and present evidence, now yields terse orders, without explaining judicial reasoning.

The result is that the Court has become a key part of the executive lawmaking process.  It has been suggested that it has used the docket to block Obama and Biden and to aid Trump.  While the jury is out on that, the Court has undergone a major change and won’t readily abandon it.  Under a Trump Court, the phantom docket could continue to flourish, even after he leaves office.

The political power of the Court through its phantom docket and Trump’s appointments, provide for a Court sympathetic to Trump actions that would exist long after he is president.   A Democratic president, and Congress could face long-term opposition from Trump’s “packed” Court.

President Franklin D. Roosevelt faced a similar situation after the 1932 elections.  When Court conservatives, appointed by Republican presidents, blocked his policies, he sought to enlarge the Court membership and faced charges of “packing” it. The conservative Court relented, recognizing that Roosevelt had been overwhelmingly backed by the voters in the 1936 elections.

The Democrats should now contemplate enlargement of the Supreme Court.  They can show it’s already packed, so they can offer to “unpack” it and restore the Court as the judicial branch.

 

If Democrats win, they can’t turn clock back

If Democrats win, they can’t turn clock back

US, world have changed

 Gordon L. Weil

Many Trump opponents believe that when the Democrats regain power, partly through this year’s congressional elections and in the 2028 presidential race, they will be able to reset national politics back to life before MAGA.

It may be a nice dream, but it’s only that.  It won’t happen, because it can’t happen.

The immediate problem is money.  The federal government now operates with a massive national deficit, mainly because it keeps spending more while cutting taxes.  Without a huge reduction in military spending and an increase in taxes, the money simply isn’t there to restore the pre-Trump government.

The Democrats have worked hard to shed an image of being weak on defense, which is as much about job creation as building a better war power.  They see risk in trimming the defense budget, but might have to make cuts to revive Social Security and Medicare.   Otherwise, those social welfare programs will weaken.  Tough choice.

Progressives favor taxing the wealthy to recover revenues lost from Trump tax breaks.  The currently highest tax rate is 37%.  In 1963, it was 91% and as late as 1981, it was 70%.   Progressive proposals are far more modest, and they would pass the revenue on to middle-class taxpayers, not the poor.  Cutting deficits, now at their highest annual growth rate, is unlikely.

But there’s more that cannot be reversed.  Under Trump, the U.S. has not only greatly reduced efforts to halt global climate change, but it actively tries to unravel what has already been done.  Glaciers melt into the sea, and no Democratic policy can halt global warming and its impacts on the climate and the sea.  Restoration must give way to real remedies, not band aids.

That would require stepped up regulation, a Trump destruction project.  The Supreme Court has not allowed the EPA much latitude in rulemaking, meaning that change will have to come from Congress.  If anything can pass, it’s likely to be more limited than under previous administrations of either party.

The U.S. has been the world’s leader in science.  Look at the Nobel Prizes in the sciences, and there’s clear American leadership.  Many of the top scientists are at leading American research universities.   Trump has declared war on many of them, using doubtful charges about mainly undergraduate protests, to withdraw funding for advanced research.

American scientists are tempted to accept appointments at foreign universities.  Younger scientists may also prefer the prospect of foreign employment over the risks of working for the universities dependent on the federal government.  When the top talent is gone, it will be difficult to attract it back to the uncertainty or companies at home.

Relations with allies have been broken.  They have learned that American policy can be erratic and that they can no longer rely on the certainty of joint action on common challenges.  Trump rightly challenged their overdependence on the U.S., but seemingly misunderstood the nature of an alliance of sovereign countries, which may have differing analyses of world affairs.

The result of his pressure has been increased effort by all NATO allies.  But with their greater strength has come their sense of independence from reflexive support for the U.S.  Both Trump’s plan to take Greenland from Denmark, a loyal ally, and his war on Iran, for which he did not consult them but expected their support, wounded the relationship.

While some advocate a return to Atlantic partnership, the absence of trust and predictability would lead to a more careful and arms-length network.  Realistically, the Russian threat, revealed in Ukraine to be weaker than believed, may eventually require less of an increasingly questionable U.S. guarantee.

Finally, there is the nature of American democracy itself.  The growth of presidential power at the expense of Congress has come at the hands of presidents of both parties this past quarter century.  The Democrats can hardly be expected to abandon many of the powers that Trump has magnified with the Supreme Court’s approval.

To modify the Constitution by agreeing to answers to the questions that have been raised about its meaning over the past 250 years would open it to a transformation reflecting the views of conservatives or liberals rather than a consensus.   Because this is understood, both sides come to the brink but back away.

Unless members of Congress show greater faith in the leading constitutional role of their branch than in loyalty to their party, little would change under a Democratic presidency.  Compromise has come to mean “my way or the highway,” yet it remains essential for the American system to work.  

The country and the world undergo irreversible change.  It is too late to turn back, especially as increased executive power has become more acceptable, and charisma may matter more than character.  The times require creativity and leadership, but both are lacking.

 

 

  

The last word on the law

 

The last word on the law

Courts or legislatures?

Gordon L. Weil

Who should decide if a law is constitutional?  The courts or the people?

This question does not exist only in an academic ivory tower.  As people increasingly see courts as partisan, it is a real issue.   A Maine case last week focused on it.

The American Constitution is silent on the issue, but the U.S. Supreme Court lost little time in asserting its authority.   It declared that it alone could conduct “judicial review” – deciding if laws are constitutional.  The highest state courts have done the same.

This ruling was authored by Chief Justice John Marshall, a member of the Federalist Party, which was dying.  By taking broad powers for the Court, he would be empowered to use his long tenure to support the Federalist view as a check on the rising Jeffersonian democracy.   Thus, from the outset, the Court was political.

While court decisions are supposedly objective and nonpartisan, it’s obvious that judges’ opinions often reflect their personal philosophy or the positions of the political parties that put them on the bench.  Pledges of neutrality may assure judicial independence, but not objectivity. 

Because judges have known ideological or political leanings, the courts inevitably take on a legislative role.  When they define what the law is, they may substitute their judgment for the lawmakers’ intent and become lawmakers themselves.

Court views may change over time, as when the Supreme Court reversed its earlier pro-abortion decision in Roe v. Wade, causing the public to see the judiciary as essentially legislative and not reliably objective.  As judicial rulings have become more controversial and apparently partisan, public support for the courts has been declining.

If courts become more like legislatures, should legislative bodies representing the people, not the judges, be responsible for deciding on constitutionality?   Two differing answers have come from two states, Maine and Alaska.

They both focused on  ranked choice voting, which modifies how votes are counted in multi-candidate elections, potentially eliminating a candidate winning simply by being “first past the post.”  In 2016, a Maine referendum launched it for federal offices and for state elections of governor, members of the House and senators. 

But the state Supreme Court ruled that the Maine Constitution requirement for election by a “plurality” prevented using RCV for state elections.  It cited the state’s troubled history involving a disputed election that had almost led to armed conflict as the reason for the requirement for a simple plurality.  The Legislature repealed the referendum result.  In 2018, a second Maine referendum approved RCV for federal offices and state primaries, but not for state elections.   

Two years later, Alaska voters narrowly approved RCV for both federal and state elections.  In 2022, the Alaska Supreme Court ruled that the Alaska Constitution, requiring “the greatest number of votes” to be elected, allows for RCV.   It attacked the earlier Maine decision for failing to take good election policy into account.  As in Maine, Alaska voters decided a second time on RCV, retaining it by a margin of 664 votes out of 340,110.

In a ruling last week, the Maine justices unanimously rejected Alaska’s unusually harsh criticism, and explained the detailed vote counting procedures laid out in the Maine Constitution, requirements that are absent in Alaska.

In Alaska, the will of the voters, expressed by a slim majority in a referendum, dictated the Court’s determination of what the State Constitution meant.  The Court concluded that RCV is constitutional, based on its political judgment of the “State’s interests in allowing voters to express more nuanced preferences through their votes….”

In Maine, RCV proponents asked the Court also to follow referendum results and its successful use in the state’s elections for federal offices.  The justices would not agree, finding that the Constitution’s definition of “vote” in state elections means the ballot cast by the voter that must be counted in their municipality, which precludes RCV.

In the U.S., the highest court, federal or state, usually decides on the constitutionality of laws.  In Britain, without a written constitution, the Supreme Court accepts Acts of Parliament as being constitutional.   In the RCV rulings, Maine had retained its traditional judicial review authority, while Alaska deferred to a referendum, a legislative act, leaning toward the British model.

Because American courts, with unelected membership, are increasingly seen as legislative bodies, adopting the British system of allowing the elected legislature to decide on constitutionality might seem to be a realistic alternative.  But there’s no chance of dropping judicial review. 

A hybrid solution could allow court decisions on constitutionality to be overridden by a legislative body, voting by a super majority vote within a fixed period after the court’s ruling.  Marshall’s concept of judicial review is not included in the U.S. Constitution, so this change could be made by law.

Trump is above the law

Trump is above the law

Enforcement is elusive

 

Gordon L. Weil

He broke international law!  He violated the Constitution!

Angered and frustrated by his actions, some of President Trump’s critics and political opponents utter these words.

So what? 

Nothing changes, largely because Trump firmly believes that he is smarter than his opponents and acts within the sweeping immunity the Supreme Court gave him two years ago.  His 2024 election victory makes him an all-powerful president.    

“Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior.  It is a fundamental aspect of any civilized society, providing the framework within which individuals and entities operate,” says a widely recognized definition.

Trump has said, “I don’t need international law.”  When asked what he would rely upon, he answered, “my own morality, my own mind. It’s the only thing that can stop me.”  Does international law apply?  “It depends on what your [my] definition of international law is.”  

These days, charges fly that Trump violates international law when he threatens Iran, writing, “A whole civilization will die tonight, never to be brought back again.”  It is easy to claim that threat violates international law, but where’s the enforcement?  While international courts exist, the U.S. has not accepted them for most matters.

International law is a collection of formal agreements and widely accepted customs that are meant to “regulate behavior” among nations.  The formal agreements, usually in the form of treaties, obligate the countries that have ratified them.  The customs are determined by their long-term use by a great many nations.

The obvious enforcement mechanism is self-interest.  For example, if a nation does not want foreign vessels within 12 miles of its shores, its boats will not venture that close to the shores of other countries.  Behind that rule is the possibility a coastal state will sink foreign vessels within the limit, an undesirable choice because of its potentially disastrous consequences.

That rule may take the form of a treaty, as it has. The U.S. has not ratified that treaty, but most major countries have.  Not the U.S., which, like China, may ignore it.

In the U.S., a government of laws is replaced by the will of a single person.  The form of government becomes elective authoritarian.

His warnings about leaving NATO become credible.  His threat to erase Iran’s civilization is credible.  Quitting an alliance or exercising coercion, both banned by treaties ratified by the U.S., is not lawful, but he believes he can do it.

If he pursues this belief, the international order fails, at least as far as the U.S. is concerned.  Allies will not support the U.S.  Ultimately, other countries could undertake economic retaliation and refuse to enter other agreements with the U.S.  He provides an incentive for other countries to use the system for their own relations, eventually isolating the U.S.

Trump believes that the U.S., with the foremost military and largest economy, can dictate its terms to the world.  But new trade agreements being reached among other countries and refusals by historic allies to fully back the U.S. in Iran are signs American power is weakening.

Ratified treaties are part of American law that should not be violated, as are the laws enacted by Congress. Yet Trump has often overridden “the supreme law of the land” without suffering any consequences in the U.S.  He can ignore the law in favor of his own “morality,” because his compliant party controls Congress and like-thinkers sit in the Supreme Court majority.

In the absence of court disapproval and congressional independence, he faces only two formal enforcement tools against unlimited power.

Two-thirds of both houses can suspend the president upon the recommendation of the vice president and a cabinet majority. Two-thirds of the Senate can remove the president from office after impeachment by a House majority.  These are drastic and disruptive procedures, unlikely to be used.  Still, Trump fears a third impeachment, which is possible. 

A congressional majority that will exercise control over presidential actions would reflect a national popular sentiment that Trump’s discretion must be limited.  Yet it is extremely unlikely that enough new senators would be elected to provide the two-thirds needed to overcome a presidential veto. 

But either house could reject presidential proposals, including for spending on military operations.  And an opposition majority could deal with the president, approving presidential initiatives in return for concessions or modifications.  This is governing through compromise, just what voters supposedly prefer and as the Framers of the Constitution intended.

In the final analysis, unchecked presidential power has become likely and easy.  Enforcement of the law to force presidential compliance is complex and difficult.  The problem is not about policy, but about process.  The solution comes in electing presidents willing and wise enough to submit to the constitutional process. 

Trump plays games with Congress

 

Gordon L. Weil

President Trump’s State of the Union Address took on many characteristics of the schoolkid’s game of checkers.

In that game, if your piece reaches the other side of the board, the piece is “kinged.”   Trump wants himself or his policies to be kinged.  Each of his proposals or actions is a piece that could go all the way to become a king. 

While he extols the success of some of his policies, none has moved even halfway across the board, because they all lack majority approval.  His claims for historic success don’t match the record. 

“Our nation is back: bigger, better, richer and stronger than ever before,” he asserted.  But the Wall Street Journal reported: “Polls find that Americans are unhappy with Trump’s handling of the economy.”  It noted that “last month, voters gave the president low marks when asked if he cares about ‘people like you’….” 

The Address was the latest version of the Trump campaign speech.  According to him, everything positive was his doing; everything negative was the Democrats’ fault.  Many voters may want less partisanship, but compromise was not part of Trump’s message, any more than concern for average people.  Trump’s a salesman, who seeks to convince people of his product’s merits.

He made his case was by selling America First nationalism as patriotism.  The U.S. Men’s Ice Hockey Team, the Olympic champions, allowed themselves to be put on display.  Republican legislators chanted, “USA, USA!”

But an American victory on Olympic ice only momentarily overshadowed ICE killings of Americans.  Trump has controlled illegal immigration, but at the cost of his policy being severely degraded by the crude abuses of individual rights by hastily trained ICE agents.  He has had to retreat, hoping to calm public ire.

Still, he tried to embarrass the Democrats.   “If you agree with this statement, then stand up and show your support. The first duty of the American government is to protect American citizens. Not illegal aliens,” he said.  Many Democrats remained seated.  The Constitution assures equal treatment to all, not only citizens.  And Americans in Minneapolis weren’t protected.

While polls are not as accurate as often claimed, they can identify trends.  On average, polls show about 60 percent of people are dissatisfied with Trump.  Given the history of the president’s party usually losing House seats in mid-term elections, that could well mean that next year’s Address will find him introduced by a Democratic House Speaker.

Seated before him were four Supreme Court justices, just after the Court had rejected his use of tariffs.  In his ruling, the Chief Justice was thought to have signaled that the courts are set to be less compliant to Trump than Congress.  

But Trump loves tariffs.  Though they are not working, he suggests that they can produce enough income to replace the income tax.   This is pure fantasy.  What is real is that they are fueling some inflation.

On all other issues, voters rate Trump negatively.  His tax reform has increased the deficit but not helped average people.  He seems to believe that tariff revenues will solve spending problems, but he overpromises.  Meanwhile, people have a tough time making ends meet.  A soaring stock market may work for the wealthy, but not for most voters.

The Democratic policy is based on the hope that Trump will defeat himself.   The party lacks a coherent alternative and a single, charismatic spokesperson.  Presidential candidate posturing and the phony rivalry between progressives and moderates who can work together for a common goal are both blocking a positive policy.

The party’s response to Trump’s Address showed that a unifying and forceful alternative is possible.  It came from newly elected Virginia Governor Abigail Spanberger.  Coming after the lengthiest State of the Union Address ever, it may have only been viewed by Democratic loyalists.  Her theme was affordability.  It is worth watching.

As usual, Trump confidently asserted verifiable untruths, often misstating the country’s economic conditions as he found them and as they stand today.  “In his speech tonight, the president did what he always does: he lied,” Spanberger said.  Trump’s problem is that people are increasingly aware of the gap between his claims and the truth.

There’s a long way to go between the State of the Union Address and November’s congressional elections.  Now it’s clear he faces increasingly skeptical federal courts and risks the end of GOP control of Congress.

Trump cannot afford to lose GOP support, because the Democrats and non-aligned voters say they strongly oppose him.  Republicans cheered his words and appear to remain loyal, but defections by only a relative few could swing the elections.

He may become a lame duck after the elections.   It could begin even sooner if some congressional Republicans increasingly see their abject loyalty to him as a political disadvantage. 

 

Tariffs failing as Court cracks down

Gordon L. Weil

The big news was that the Supreme Court ruled that most of President Trump’s tariffs were levied illegally.   He so badly wants them to work, that he is trying again in a more limited way, but Congress could limit or stop him.

The real news is that the tariffs aren’t working to achieve his objectives.  In fact, they are hurting American consumers and the economy.  Nothing shows this more clearly that the desperate defense put up by Kevin Hassett, director of the government’s National Economic Council.

Trump had favored him to take over Fed leadership, but was forced to look elsewhere.  Hassett, an extreme Trump loyalist, embodied the notion that the president can control the independent Fed.  His obvious risk to Fed independence was more than Republicans and Democrats could accept. 

Last week, Hassett proved their judgment correct.  He wildly and incorrectly defended Trump’s tariffs in the face of evidence they weren’t producing promised results.

The Federal Reserve Bank of New York published a report showing that over the course of 2025, Trump’s tariff increases had mostly hit American consumers and businesses, amounting to a tax increase.  Hassett attacked the report, deriding it as not being worthy of an introductory economics class.

When import tariffs are increased, somebody pays them.  Trump believed that foreign producers would swallow the cost, enabling them to maintain their market share.  He saw their increased burden as punishment for underselling U.S. producers.  If they opted to pass their costs on to American purchasers, higher-cost U.S. production would become competitive.

The report showed that nearly 90 percent of the Trump tariff cost had been passed on to Americans, leaving only a small impact on foreign producers.   After attacking the study, Hassett then admitted the tariffs had caused “a slight increase” in U.S. prices.

But Hassett stuck with Trump’s optimistic view.  Even admitting that tariffs caused price increases, he argued that the benefits outweighed those costs.  After all, imports would be reduced, and American manufacturing would gain and add good-paying factory jobs.  Well-paid workers would be able to pay the higher prices of American products.

Hassett and, by implication, Trump were wrong on all counts.  Not only was the country spared his misguided Fed leadership, but Congress could come to understand that one of the key pillars of the president’s policies simply does not work.

Imports grew as companies stockpiled goods before the tariffs went into effect.  Then, they could be reduced while the resulting import goods were sold off and would stay down as U.S. production picked up.

Not so.  As reported by the New York Times, “U.S. imports grew last year, and the trade deficit in goods hit a record high …, as Mr. Trump’s policies scrambled trade but did not halt it.”   In fact, the deficit in goods, the object of trade battles, swamped the improved U.S. exports of services, not much affected by the tariffs.  Trump pays little attention to services.

Did the added tariff protection increase American manufacturing as Trump and his man Hassett predicted?  Not according to the manufacturers.  Their index showed that factory activity contracted during 2025.  Only in one month under Trump was there any growth.

What about manufacturing employment, which should produce more well-paid workers if the tariff policy works?  The manufacturers employment index fell by more than 10 percent, and the Times reported over 80,000 fewer workers.  The result was less employment in slimmed-down manufacturers.

The president is banking on Trumpenomics beginning to produce positive results before the November elections.  It’s likely that his biggest economic issue is affordability, a word he sometimes has difficulty saying.   That problem will only dissolve if consumer prices moderate.  Not all their levels are caused by tariffs, but tariffs give no sign of helping.

The truth has always been that most countries are not staging economic assaults on the U.S.  To the degree that the Chinese state economy has exploited American demand for cheap goods, Trump’s tariff policy has cut trade with China.   But it has simply moved to other low-cost countries like India, Mexico and Vietnam.

Trump likes to give the impression that the U.S. can be self-sufficient and is doing other countries a favor to trade with them.  Maybe it can do without French champagne, but it can’t do without Canadian electricity.

He continually claims the U.S. economy is booming, though the national economy slowed last year.  It is working well for the top 10 percent, relatively little affected by tariffs.  They also drive a climbing stock market, whose performance appears to be a prime Trump indicator of national prosperity.

He tries to jawbone average people into believing their economy is great and getting better.  He depends on the effect of tariffs to make his case, but Trumpenomics is not working.  The voters may provide a better economic index in November. 

Presidential racism, Impeachment and the Clinton's retreat

 

Gordon L. Weil

Racism

President Trump is responsible for posts from the White House on his Truth Social. 

He has lowered communications on his site to the level of the street.  The presidency has been stripped of the respect it needs and deserves.

A racist post from the White House about former President Obama and his wife Michelle was uploaded to Truth Social.  Trump has refused any responsibility for it and would not apologize to the Obamas and the American public.

He allowed his in-house propagandist to excuse the post, then supported her obvious lie.  He insults our intelligence.

Both the post and his reaction are evidence that Trump is a racist. 

No rational person, much less a national leader, would allow such a post and refuse to apologize for it.  That raises the question of whether Trump can be considered a rational person.  

BTW, scientific theory, based on DNA, suggests that we may all descend from an African female, known as “mitochondrial eve.”    

Impeachment vote

Impeaching federal officials requires a majority of the House of Representatives.  If the Democrats take control of the House after this November’s elections, they might impeach Trump for a third time.  That goes a long way to explaining his efforts to maintain GOP House control.

If he were impeached, the Senate would almost certainly be unable to muster the two-thirds needed to convict him.  That would not deter Democrats who could seek to embarrass him, while forcing him to focus attention on his trial rather than on new initiatives.

For a person so clearly concerned about how others see him, a third impeachment would assure him a negative verdict in presidential history.  That could appeal to frustrated Democrats.

The outcome would also further devalue impeachment, which is fast becoming nothing more than a symbolic vote of no confidence in the president.   While impeachment may become part of the political woodwork, it will end up changing little.  With almost no possibility of the conviction of any president, perhaps politicizing impeachment is its best use.

Court delays

The Supreme Court has moved quickly to issue procedural orders allowing Trump to pursue many of his disputed actions until it renders final decisions.  The president gets months of leeway to act before there’s any risk that the Court will halt some of his policies.  Meanwhile, the district courts keep issuing adverse decisions for later Supreme Court review.

Trump’s use of emergency powers to justify raising tariffs has already been rejected in two courts’ detailed rulings. During a hearing, Supreme Court justices questioned his use of the law. 

But the Court has not issued its decision, allowing the tariffs to apply.   While there’s a broad expectation that the Court will rule against the president, its delay defies explanation.  It is undoubtedly giving Trump more time to prepare fallback measures if he loses.

The Court’s excuse might be that it has so many major cases that its decision-making must obviously slow down.   If so, that makes the case for enlarging the Court.

Years ago, the Court made 200 decisions a year.  Now, it barely reaches 70 rulings.  With more justices it could dole out the work to more hands.  It should then be possible to work somewhat faster.

Enlargement does not require court packing.  Instead, as I have previously proposed, Congress could create temporary slots.  Justices would be added to the usual nine and could move from a temporary seat to a permanent place as older justices left the Court.  This would be a temporary solution that could be made permanent after its effect was tested.

Temporary slots have been used for the Supreme Court and courts of appeal.  Right now, they are being used for federal district courts.

Clintons decide to testify

Bill and Hilary Clinton declined to testify before the House committee looking at the Epstein revelations.  As a result, the Republican-dominated committee geared up to find them in contempt of Congress.

Congress has no prosecutorial powers, so its contempt finding would go to the Justice Department for action.   Congress might score political points, believing that the Justice Department would not proceed to prosecution.

But with Trump allies controlling Congress and Trump himself directing the Justice Department, the Clintons could envisage being formally charged with contempt, leading to a trial.  So, they decided to head for cover by withdrawing their refusal to testify. 

Their decision reflected the political reality of dealing with a system dominated by your political opponent.  Trump is dedicated to partisanship, retribution and the destruction of his presidential predecessors.  His loyal, if unprincipled, appointees cater to his wishes.

In the end, as many others in the Epstein files may be finding, it may be better to accept a short-term hit to your political reputation than to face conviction of guilt by association – or worse. 

 

Supreme Court revives its worst decision

 

Gordon L. Weil

 

The worst decision ever made by the U.S. Supreme Court was its 1857 ruling in the Dred Scott case.

The Court has just issued an obvious offspring of that decision. 

In Dred Scott, the Court majority decided that African residents, brought to the country as slaves or their descendants, were not citizens, even if they were free, because the founders of the U.S. had not considered them to be eligible for citizenship.  The decision said:

We think ... that they [Black people] are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time [of America's founding] considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

This was racist originalism.  Africans were not citizens when the country was created, the Court found, and thus could not later be citizens.  In fact, the Constitution guarantees the rights of “persons” not only “citizens.”

There were two dissents.  One noted that African Americans were citizens and voted in five states when the U.S. was created under the Articles of Confederation.   Some states had ended slavery.   Thus, the majority was flat wrong.  The second dissenter found that U.S. federal law, which recognized that Blacks could be citizens, prevailed over a contrary Missouri statute.

Despite the passage of the Civil War constitutional amendments, many African Americans were denied their civil and voting rights until the 1960s.  The 1965 Voting Rights Act provided that the federal government could ensure states did not block full Black suffrage and could require federal advance approval of changes affecting minority voting in some locations.

The legacy of the Civil War was redeemed by this legislation.  But the current Supreme Court eliminated federal pre-approval of voting changes on the grounds that racial discrimination no longer exists.   It now appears poised to eliminate federal power over states to prevent discrimination, leaving it to the courts to deal with electoral bias case-by-case.

Because the Republican margin in the House of Representatives is extremely narrow, President Trump urged states under GOP control to modify district boundaries, usually done after the census every 10 years, to increase Republican majority districts before the 2026 elections.   His Department of Justice found the current Texas districts discriminate and sought change.

Texas redistricted to add five GOP seats.  Its action was challenged on the grounds that the redistricting was both partisan and intentionally discriminatory.   The Texas GOP replied that redistricting was purely for partisan purposes, which is legal, and to meet DOJ requirements.

A U.S. district court ruled that the redistricting was discriminatory.  In redrawing the lines, Texas intentionally reduced the possibility of seats going to Blacks.    To reach this conclusion, the court had conducted nine days of hearings, received testimony from 23 witnesses and collected thousands of exhibits.   It produced a record of more than 3,000 pages.

The Supreme Court is supposed to defer to the factual judgment of district courts unless they are clearly unreasonable.  Justice Elena Kagan, a dissenter, said that the district court’s work had been rejected over a single holiday weekend.  The majority simply overruled the district court, apparently ignoring its extensive record, and believed Texas.

The Court’s majority criticized the district court for not having shown deference to the Texas Legislature.  It also said the lower court should have produced an alternative map, accepting without questioning the DOJ claim that the current map was discriminatory.

This ruling may forecast the upcoming decision on federal review of state districting.  It is almost certain to strip the Voting Rights Act of any federal powers to prevent discrimination.  It will become an unenforceable law, possibly left only to individuals who believe they have suffered racial discrimination.

The Court majority asks people to believe that discrimination does not exist or is so rare that federal protection of voting rights is no longer necessary.   This finding must overcome any evidence that Blacks suffer from official bias, because they are black.  It must rely on the fact that most Blacks vote Democratic and color-blind partisan redistricting is legal.

The Civil War and the Voting Rights Act may have forced the country to allow Blacks to vote, but they did not prevent those in power from making Black votes meaningless.  The Court echoes Dred Scott’s message that they have “no rights or privileges but such as those who held the power and the Government might choose to grant them.”

 

 

Trump in Caribbean may enjoy immunity

 

Gordon L. Weil

The furor over the shooting of two survivors of an armed attack on a Caribbean vessel is all about who gave the execution order.

But there’s a lot more to it than that.  It gets to the essence of the Trump presidency.

The central issue joins the Supreme Court’s 2024 decision on presidential power with Trump’s view of himself.  The combined effect may be to have created a presidency of unlimited power.  The only restraints on Trump are either the formal, if extremely remote, possibility of his removal from office, or an electoral rebellion by voters across the country.

The question before the Supreme Court was whether presidents could face criminal charges for actions taken while they were in office.  To answer that question, the Court made a sweeping statement about the extent of presidential powers.

Presidents are completely immune from any legal control when they exercise the specific powers delegated to them in the Constitution, it ruled.  For example, the power to issue pardons, liberally used by Trump, cannot in any way be questioned or limited by Congress.  Acting as commander-in-chief, potentially against Venezuela, may also be immune.

In contrast, the Court found that presidents are completely subject to control when they clearly act in a private capacity, without any official authority being involved. Such actions may be difficult to identify.

A problem arises when they exercise powers that are at the edge of their authority or which they share with Congress.  The Court said they must be presumed to enjoy immunity, though the Court will have to determine case-by-case if they went too far.  It made no judgment on Trump, but sent the cases back to the district courts where they died when he became president.

The Court reveals that it is highly unlikely to find that presidents had exceeded their legal authority.  If they applied the law differently from congressional intentions by using their own interpretation, they would be presumed to enjoy immunity.  Trump may be right when he claims he is not strictly bound by the law.  His immunity covers his appointees, like Hegseth.

Relevant to the Caribbean case, the Court planted a little noticed bombshell.  The Constitution requires presidents to “take Care that the Laws be faithfully executed …,” but the Court ruled that requirement applies “domestically.”  It seemingly set a different standard for the exercise of presidential powers as commander-in-chief and in managing foreign affairs. 

Destroying alleged drug-smuggling vessels on the high seas is not “domestic.”  Might the president avoid faithfully executing the laws of war even if they have been adopted in U.S. law? 

Could the president order an invasion of another country without a declaration of war if there is no remedy besides impeachment?

Can the president allow violations of the Nuremberg rules of international law that ban subordinates’ claims that they were “just following orders?” 

The Court seems to say that if presidents act as commander-in-chief, they are not bound by the law.  They must only obey the Constitution, which offers a lot of leeway in interpretation.

Most past presidents, with the notable exception of Richard Nixon who quit before he was convicted, have followed constitutional understandings that embody the spirit of the American Revolution against the British king and the intentions of the Framers of the Constitution.  Trump has pushed his authority beyond those historical limits.

His approach appears to flow from an inbred notion of his personal superiority.  His special qualities allow him to disrespect other people and nations.  Nobody has the right to his respect or even courtesy, because he operates on a uniquely elevated level, as validated by voters.

When it comes to immigrants, he seeks to operate as prosecutor, judge and jury simply to exercise his personal prejudices, especially involving non-white people and nations.  His policies are predicated on obvious falsehoods.  He must know he is lying to Congress, the media and the public.

He has no respect for Congress. Its Republican majority clings to their seats and privileges, and appease his excesses to avoid his backing a primary challenger.   They have abdicated the preeminent constitutional role of Congress, thus failing to hold him accountable.  He ignores them with impunity.   He regards the Democrats as “the enemy.”

If his policy runs against the law, he overrules it.  His policy then becomes the law.  See DEI.  See USAID.  Perhaps he has gone too far with the Caribbean killings or having been caught trying to escape his previous promises about revealing the Epstein files.   Congressional Republicans seem restive, but it’s probably too early to call it courage.

The American Republic is united not by common ethnicity, but by common ethics.  With the Court’s backing, Trump sheds historical balances and restraints and offers instead dangerous change, with the clear message, “I am the law.”   

 

Trump shows his worry about Supreme Court tariff case

 

Gordon L. Weil

Unlike almost all other countries, Canada has refused to make concessions to President Trump that would induce him to lower tariffs.  While he has taken actions on policies not yet in effect or to match a U.S. concession, Prime Minister Mark Carney insists in negotiations.

But trade talks are making no progress.  Instead of wasting time courting Trump, Canada is working hard on finding alternate markets and on increasing domestic trade.  But it attempts to keep talks going in the hope that the U.S. will realize its dependence on its major trading partner and ally.

Then, Ontario Premier Doug Ford, whose province is deeply involved in the joint American-Canadian auto manufacturing arrangement, vented his frustration with the talks.  As a Canadian Conservative, he had liked Trump’s return to office.  But the president’s tariff policy almost immediately turned him around.

Ford launched a one-minute television ad featuring long-ago remarks against tariffs by then President Ronald Reagan.  Trump immediately blew, impulsively cancelling what seemed to be the almost mythical trade talks with Canada.  Then, he added a new 10 percent tariff.  Out of this ad and Trump’s visceral reaction came a flood of misdirection.

First, was Reagan for or against tariffs?   He was a free trader who had just raised tariffs on Japan in retaliation for its protectionism.  While making this protective move, he sought to maintain his reputation as a free trader.  The statements Ford used were not out of context with Reagan’s entire remarks, but they were out of context with the complete circumstances of the times.

Trump claimed that Reagan “loved” tariffs, which also took his remarks out of context.  The former president tried to make clear that he did not like tariffs and their effects, but sometimes increasing them was necessary.  He did not use them like Trump’s broad-brush approach.

Second, Ford’s ad opportunistically took advantage of the fleeting moment when Americans would pay much attention to Canada, thanks to the opening of the World Series between the Toronto Blue Jays and the Los Angeles Dodgers.  It was an outburst of patriotic support for his province, home of the Blue Jays, and an outlet for his anger over Trump’s auto protectionism.

Third, Ford was seeking to put pressure on Carney.  They are not natural allies.  Besides, Ford’s Ontario has demands that differ somewhat from Carney’s Canada.   Canadian provinces often find themselves at odds with federal policy.  Ford could be seeking a deal that would benefit Ontario, but possibly at the expense of other provinces.

Carney obviously did not like Ford treading on his authority over foreign and trade policy.  He got Ford to withdraw the ad, but only after the first two games, both played in Toronto.  Ford wanted to keep exploiting the inevitable explosion of Canadian nationalism at the games, but he does not speak for Canada.  Carney showed Trump that he had no responsibility for the ad.

Fourth, Trump’s instant reaction scarcely hides the reluctance of the U.S. to arrive at a negotiated deal with Canada rather than simply forcing it to make concessions.  Trump apparently believes that delay weakens Canada and improves his own position.   He ignores the deep anger north of the border about his suggestion that Canada should become the 51st American state.

Fifth, perhaps the most important aspect of the ad flare-up is that it revealed what is truly worrying Trump – the possibility of a Supreme Court ruling unravelling most of his tariff policy.  Two federal courts have already ruled that most Trump tariffs are not allowed.  The case is now before the Supreme Court.

Congress permits the president to alter tariffs in a national emergency, but his current declaration does not meet the standard set by Congress in giving the president its power to set tariffs.  His complete control over tariffs would be unconstitutional.  And, it is hardly a national emergency when tariff talks with Canada are ostensibly ended because of a critical television ad.

Trump charges that Ontario’s Ford is trying to influence the Court’s decision.  But Ford only wants a trade deal on autos.   And it’s an insult to the Court that it, like Trump, would be influenced by a Canadian television ad.

Trump’s reaction could go beyond trade policy and increase his worries.  If the Supreme Court affirms the ruling of the lower court specializing in trade matters, it would be the first serious limit it has imposed on his powers.  If it supports him, the ruling would cement its backing for his virtually absolute power.

He believes that court actions can be influenced by his political pressure.  Federal courts, including the Supreme Court, led by judges he has appointed, have favored him.  By creating an improbable pretext for Ford’s ad, he may want to be seen as a victim, worthy of more judicial deference.

Supreme Court conservatives become America's legislature

 

Gordon L. Weil

The U.S. Supreme Court seeks a new record: to issue a ruling rivaling the infamous 1857 Dred Scott decision that said that Blacks could not be U.S. citizens. 

That decision was a cause of the Civil War, which led to constitutional changes intended to give African Americans equality with all other Americans.  In 1965, one hundred years after the end of the Civil War, the Voting Rights Act was adopted to finally ensure equality in access to voting. 

Because some states, mostly in the former Confederate South, had adopted laws and practices keeping Blacks from voting, Congress empowered the federal government to approve state voting practices to ensure they were not discriminatory and required states to design congressional districts that would not dilute minority voting.

The Supreme Court, controlled by a conservative majority of six justices, decided that federal supervision of states to prevent discriminatory districting had run its course and should end.  Virtually instantly, some states acted to reduce the possibility of Blacks being elected.

Now, the same Court majority seems ready to decide that the anti-discrimination requirement imposed on states is also outmoded.  Ignoring the effects of its earlier decision, it is poised to hollow out what remains of the historic Voting Rights Act.  If not racist, such a decision would reveal a remarkable indifference to American history.

The media has chosen to focus on the effect on the Democratic Party, supported by most Black voters, forecasting it will lose seats in Congress.  At a time when the Democrats might gain control of the House, the Court may assure the continuation of a GOP House, the subservient backer of the powerful president the Court has created.

But the focus on elections misses the setback to the equal treatment of African Americans, leaving them once again victims of the after effects of the nation’s “original sin” – slavery.  The pending decision could be deeply divisive, just as was Dred Scott.  Of course, there will be no armed conflict, but national unity could be severely tested. 

With Congress having fallen in line behind an increasingly powerful president, the Court has become the U.S. legislature.  Six conservatives have assumed the power to amend what may be one of the most important laws ever adopted in the nation’s history.

The Supreme Court’s power is not derived solely from the Constitution, but from an understanding among the early Federalists that the Court should have the authority, in the words of the key 1803 judicial decision, to “say what the law is.”  This is judicial review, with the last word on the law held by the Court.

This power differs from the British system, where the last word on the law lies with Parliament and the courts cannot reverse its decisions.

Judicial review should be changed.  Proposals to depart from the long-used approach might be written off as impractical or unrealistic, but the Trump regime has dangerously abused the concept.  Thinking outside the box Trump is creating has become critically important.

The most obvious change, but also the most unlikely, would be to amend Article III of the Constitution to remove this power from the Court.

But there are other measures available to Congress that are less extreme and easier to achieve.  This column has explored them.  They would require only an act of Congress with the assent of the president.

The Court could be enlarged to allow the president to appoint justices creating a majority more responsive to the will of Congress and to the people.  Abraham Lincoln did it, and Franklin D. Roosevelt’s proposal to pack the Court brought “a switch in time that saved nine.”

Short of enlargement, the number of justices on the Court could be temporarily increased.  Congress now creates temporary slots on the federal appeals and district courts.   They are filled by lifetime appointees who later move into the permanent positions as they are vacated.  This could be done at the Supreme Court to allow its steady renewal.

Temporary slots are often created because the burden of the caseload has grown.  The Supreme Court handles many fewer cases than previously, so perhaps it needs some help.  The use of temporary slots would allow for a smoother evolution from a Court dominated by the appointees of one president to those selected by a successor.

Even without expanding the Court, the Constitution gives Congress control over its jurisdiction. It can limit the Court’s jurisdiction over certain issues.  The Court has accepted such legal limits.  A restriction could be extended to include congressional districting cases.

Another method to limit the Court’s power would be a hybrid of the American and British systems.  The Court could still decide on constitutionality, but could be overridden by a required supermajority procedural vote, like the Senate filibuster, or two congressional votes separated by a designated delay period. 

Any of these changes may require a strong Democratic majority controlling Congress and a favorable president.  If the Supreme Court chooses to gut the Voting Rights Act, the Democrats could make Court reform a central part of their platform. 

Constitutional test looms at Supreme Court

 

Gordon L. Weil

On Inauguration Day, President Trump issued a torrent of executive orders, aimed at reshaping the federal government; many more would follow.   Facing a flood of bad news, people affected took Trump to court.

Those affected believed they would soon gain relief from what they claimed were his illegal or unconstitutional acts.  But his supporters felt confident that, despite initial adverse rulings from lower courts they labeled as liberal, a friendlier Supreme Court would endorse his moves.

Faced with a steady flow of Trump’s executive orders, dockets expanded in every part of the country.  Federal district and appellate courts have worked nights and weekends to keep up with the cases. 

Meanwhile, the Supreme Court, enjoying its usual three-month break, limited itself to a few procedural orders, supporting Trump, while putting off decisions.  It hears its first case on October 6.

In July 2024, the Supreme Court ruled that the president has almost unlimited executive powers, free from control by Congress or the Court.  The courts also would have “no power” to control the president.   Presumably, the courts could decide if the president enjoyed such a grant of full powers under the Constitution.

In a variety of ways, all the cases making their way to the Court will test the scope of the presidential powers that it has recognized.

Until now, Trump has asserted that the powers he exercises fall under the independent and exclusive power of the president.  In many decisions of challenges to his orders, lower federal courts have found that he violated the Constitution or laws.  They have suspended his actions, but the Supreme Court overruled them, allowing him to act for the time being.

The outcome of the legal tests between Trump and his challengers is not clear.  Some appellate decisions have been by split votes, suggesting the Supreme Court majority might see merit in either side. If the justices act based on the party of the president who appointed them, Trump could prevail.

Though many cases are pending, most fall into a few key areas.

The Constitution itself is in play.  Trump claims that the Fourteenth Amendment right to citizenship at birth, treated as absolute since it was adopted in 1868, does not apply to the children of illegal immigrants.  If the Court agrees that birthright citizenship may be conditional, the right could undergo great change.

Trump also seeks to deny due process rights to people before they are expelled from the country.  The Constitution applies to a “person” not only a “citizen,” but Trump discerns a distinction with which no court has yet agreed.

How far does the executive power extend?  The Court has already upended independent regulatory agencies by allowing the president to fire their members.  Will it allow him to fire them at will under DOGE, ignoring century-old civil service laws that protect government employees?

While the law is supposed to prevent his withholding public spending previously mandated and authorized by Congress, Trump has virtually eliminated entire agencies and their employees.  He ended programs created by law with no opposition from the Republican Congress.  If his powers extend that far, what remains of the congressional “power of the purse?”  

Trump backers claim his election victory gives him the right to implement his agenda without congressional approval.  He has removed women and Blacks from office in the belief that they had received favorable treatment.   He penalizes states and universities, stripping federal funding if they have programs to ensure equal opportunity, branding them as “woke.”

He uses the Title IX prohibition banning discrimination against women in athletics to keep trans women from women’s competitions.  Is this a matter he can decide or is it up to the states or Congress?   Maine’s Gov. Mills has asserted the state’s right in the face of retaliatory funding cuts.

Despite both history and a long-standing law, Trump deploys the military to engage in law enforcement activities meant to be under state jurisdiction.  He has sought to transform world trade by imposing heavy new tariffs using or misusing emergency powers granted by Congress.  Two courts have decided that he exceeded his authority.

Ultimately, such cases may come to the Supreme Court when it comes back to Washington next month.  The justices may take their time in deciding the many cases making their way to the Court.  A slow pace, like its recent procedural rulings in his favor, would simply allow his decisions to achieve their purposes before the Court rules on their legality.

If the Court affirms its view of virtually unlimited presidential power, as is possible, it could nullify the balance of powers in the Constitution.  If so, the Constitution itself and the Court’s own future will become hotly contested political issues.   The ultimate court will then be the voters.

In short, it will soon be crunch time for the Constitution.