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.

The Constitution Annoys Trump; judges act independently

 

Gordon L. Weil

For one bright, shining moment last week, the federal court system seemed to get the better of President Trump.

The U.S. Court of International Trade, a regular part of the federal court system, ruled unanimously that Trump’s use of an emergency law to change tariffs across-the-board was not permitted by that law. 

It did not question his judgment about the existence of an emergency; but rather whether his actions were allowed if there were an emergency.  That’s a critical difference.  The president’s judgment is protected by the separation of powers.  But he does not get “unbounded authority” to say what the law is; that’s the role of the courts under the same separation powers.

The Trump administration response differed.  “It is not for unelected judges to decide how to properly address a national emergency,” a White House spokesperson said.

This statement reflected the view that winning an election gave Trump the authority to act as he sees fit and not subject to judicial review, considered to be “judicial tyranny.”  The fact that the judges are not elected, while the president is selected by voters, makes all the difference.

Disparaging the judiciary, because it is controlled by unelected judges, misses the point.  The Trump administration may see this presidency as an unusual chance for the exercise of supreme power, unimpeded by either a GOP Congress or an unelected court.  Or, just as likely, they may reveal a fundamental lack of understanding of the Constitution.

Federal judges were intentionally given life appointments to remove them from the political wars of the day.  “It is emphatically the duty of the Judicial Department to say what the law is.”  Under “a government of laws, not of men,” all must obey the law.

In the Federalist Papers, Alexander Hamilton argued that “permanent tenure” in office guarantees the independence of justices, allowing them to ensure that the other branches of government do not violate the Constitution.

Hamilton continued: “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men … sometimes disseminate among the people themselves, and which have a tendency … to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

In short, the non-elected status of judges is essential to their independence so they can serve a prime function of the government – protecting the people from their government if it goes beyond the limits of the balanced powers “we, the people” authorized.  That may prove inconvenient or annoying to Trump, but that’s exactly what was intended.

Trump is not the only president to try to exceed his authority.  In a recent example, former President Biden used a twisted interpretation of a law intended for a different purpose to spend hundreds of billions of dollars to forgive student loan debt.  He lacked congressional approval. The unelected Supreme Court appropriately overruled the elected president.

Trump took advantage of a growing conservatism to win his 2016 election.  He turned to the Federalist Society, the leading conservative legal organization, for nominees to the federal bench.  These judges overruled abortion rights. Trump had correctly counted on them to produce a decision consistent with his own position.

In his second term, he has learned in one case after another that his appointees, while conservative, are mostly competent jurists, willing to oppose his initiatives.  They may render conservative interpretations of the laws and Constitution.  Trump has come to realize that they are conservatives, but not necessarily Trumpers.  They will not automatically fall in line behind his policies.

Imbued, for the time being, with a sense of unlimited power drawn from his electoral vindication, Trump now attacks the Federalist Society.  He may forget that six of the nine members of the Supreme Court, on which he will ultimately depend to affirm his policies, are members of the Federalist Society.

Whenever Trump receives an unfavorable federal court decision, he often lashes out at the judges, claiming they are corrupt or partisan.  He seeks to undermine public confidence in the judiciary, possibly hoping the judges will retreat to save their reputations.  Some of his backers say the judges should be impeached for denying the demands of the elected president.

Trump also shows a massive disrespect for the court system by pardoning hundreds of serious criminal offenders who were convicted in jury trials.  He sets himself up as a new court of appeals, rewarding political allies and major contributors.

As I have discussed last week and earlier, the Supreme Court may make or break many Trump policies when it takes a closer look at the extent of his presidential power.  The outcome could go either way, but his attacks don’t help him make his case at court.

 

Trump's trifecta: Congress, states help

Gordon L. Weil

Trifectas are not only for racetracks. 

At the track, you win a trifecta bet by picking the first three finishers in order.  The pay-off is usually big.

In politics, trifectas also exist.  That’s when one party controls the executive and both branches of the legislature.  President-elect Trump will have one.  That could give him a big payoff in presidential powers.

The scope of Trump’s victory cannot be measured solely by his big margin in the electoral vote or his narrow margin in the popular vote.  The voters did not split their tickets and gave him a Republican Congress free from any Democratic check on him. What made Trump’s win so large was his undisputed win and having a potentially compliant Congress.

A trifecta-plus occurs when a majority of the highest court sides with a trifecta party in power.  Given the conservative, sometimes openly partisan, majority on the Supreme Court, Trump could enjoy that kind of government.  Its decision on allowing considerable presidential immunity gives him broad discretion to skip applying the law or to rule by executive orders.

Political trifectas often exist at the state level.  Next year, 23 states will have Republican trifectas, 15 will be Democratic and 12 states will have divided governments.  In terms of population, 42 percent of the people live in Democratic states and 41 percent in GOP states.  Maine is a trifecta state, and the Democrats frequently dominate, as they will again in 2025.

While there will be some defectors, most Republican trifecta states can be expected to follow Trump’s lead, adding to his power. When he seeks their involvement in enforcing his immigration policies, they are likely to provide help in finding and expelling illegal immigrants.  These states could multiply the effect of his federal actions on other issues as well.

During Trump’s first term, Democratic states managed to avoid action on some federal government demands.  That administration had moved too quickly to put Trump’s platform into effect.  Its hasty work was sufficiently sloppy that Democratic state administrations could find and exploit loopholes.

The new Trump term promises to be somewhat more professional and based on more than loyalty alone.  His appointees should pursue his goals, but may be able to develop their own methods.  If he micromanages or impatiently demands immediate action, he may not avoid the same kind of errors he previously made.

One federal law may somewhat slow Trump’s progress.  The Administrative Procedure Act may sound dry, but it can be an effective way of slowing sweeping change.  Government agencies may add or drop a rule only if they can justify their plans and allow for public comment.  The APA process takes time.

The president, no matter his mandate, must follow the law.  Some states will inevitably challenge Trump’s moves in federal court.  Washington State often brought actions during the first Trump term, winning 55 separate cases.  Such proceedings can serve to slow changes. 

Ultimately, the conflict between the Trump administration and Democratic states is likely to boil down to a dispute about one of the key parts of the Constitution.  It’s called the Supremacy Clause.

While the original states believed they were delegating only some of their sovereign powers to the federal government, that clause has given Washington great powers over the states.  It says that laws enacted under the Constitution are “the supreme law of the land.”  Such laws may simply overrule state laws.

In practice, the federal government has moved into areas that the Framers may not have thought would be taken from the states.  That opens the question of whether a state is blocked from all independent action on a matter or if it shares authority with Washington. 

Can a state accept the federal rule, but go beyond it by being even more strict?  The question is whether the supremacy clause can preempt any state power or allows states to exercise sovereignty alongside the federal government.  Cases are likely to be decided one issue at a time.

If all of this sounds like the making of a legal mess, it is.  It surely could slow federal action, though the Supreme Court has been quickly issuing procedural orders that could be favorable to Trump, even while its final decisions may take many more months. 

In the end, conflicts between Trump and the Democratic trifecta states may be settled by the Supreme Court.  The Court decides what the Constitution means. It seems likely that, given the current Court’s pro-Trump leaning, its decisions in supremacy clause disputes would result in judgments favorable to the president.

The Supreme Court could allow Trump to force Democratic states to follow his agencies’ orders. American politics could be arriving at government under a federal-state, trifecta-plus regime.    With that kind of wall-to-wall control, Trump would hold the winning trifecta ticket.