The Supreme Court’s conservatives spent most of last term
accepting, then granting, an unprecedented slew of heretofore-rare DOJ
“emergency applications” from the court’s so-called “shadow docket,” most in
the service of staying lower court bars against myriad Trump administration
actions bloating presidential powers. Thereby, the justices enabled Trump to
continue breaching preexisting boundaries without having to decide on the
merits whether his power grabs actually violate relevant law. In most cases,
the justices issued these often highly consequential edicts with no explanation
to help parties, lower courts, other governmental branches, or the public get
an inkling of what their final decision might be, or what analytical approach
they will deploy.
But in recent weeks, Trump’s gluttony for norm-breaking has
reached heights that preclude the justices from continuing to kick these cans
down the road. In the term that begins next month, they will have to stop
dithering and decide issues that could make or break his presidency. On
September 9, the court agreed to review two lower court rulings that held that
Trump’s huge new tariffs lack any statutory authorization and would, one appellate
court held, usurp “the power of the purse (including the power to tax) [which
under the Constitution] belongs to Congress.” This past Monday, September 15,
an appellate panel upheld Federal Reserve Governor Lisa Cook’s challenge to
Trump’s attempt to fire her without statutorily prescribed “cause.” A day later,
the White House announced its intent to appeal that defeat to the Supreme
Court.
A
number of prominent liberal court-watchers, such as law professors Lawrence
Tribe and Leah Litman, pundit and author Ian Milhiser, and, at times, Supreme
Court Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson, have
ascribed the conservative majority’s receptivity to Trump shadow docket
requests, to rank partisanship. Much evidence lends credibility to that charge.
As of this writing, the Trump Justice Department has filed 20 emergency
applications with the court in its brief tenure, compared with a 16-year total
of eight such applications from the George W. Bush and Barack Obama administrations,
or one every other year.
This
year, the court granted 18 of Trump’s requests to stay adverse lower court
orders, usually over fierce dissents from liberal justices. Georgetown law
professor Stephen Vladeck spotlighted
the “rather obvious contrast—where serious standing objections were not enough
to justify emergency relief when it was the Biden administration looking to put
its student loan debt relief back into effect, but where … weaker standing
objections were enough to justify allowing [President Trump] to effectively
strangle a critical federal agency.” (Emphasis in the original.) Trump had fired
fifty percent of the Department of Education’s workforce overnight. By letting
this decapitation stand for as long as Trump manages to slow-roll litigation challenges,
the conservative justices may well have enabled him to render his starkly
unlawful objective—unilaterally terminating a congressional enacted department
and multiple duly enacted programs—a fait accompli.
But
writing off the justices’ recidivist misbehavior solely to partisanship
fails to account for aspects of the record in which one or more of the
Republican presidential appointees, as well as numerous lower court judges
appointed by Republican presidents, including by Trump, spoke out and ruled
against critical elements of his imperious modus operandi.
During
and prior to this second Trump administration, Republican-appointed judges and
justices rejected his efforts to overturn the 2020 election over 60 times. In
April and May of this year the court enjoined, pending a
final decision, the administration’s effort to summarily deport undocumented, alleged
Venezuelan gang members; the Justice Department claimed as authority the Alien
Enemies Act, a law enacted in 1798 and gathering dust ever since. The court sidelined
the administration’s (lame) statutory argument with the Constitution’s Fifth
Amendment guarantee that government cannot deprive any person of liberty
without due process of law. Roberts’ opinion for the court admonished that, for
deportation targets, the government must provide “sufficient time and
information to reasonably be able to con tact counsel, file a petition, and
pursue appropriate relief.” He chastised DOJ for flimflamming the lower courts
and the Supreme Court with falsified factual representations, and reached
outside the record to assail administration officials’ threats and actions to
evade or defy court orders.
In
2019, Roberts wrote the court’s opinion quashing
Trump’s scheme to include on the 2020 census questionnaire a question on individuals’
citizenship, intended to deter Hispanic citizens from voting; Roberts’
blistering rebuke called out Commerce Secretary Wilbur Ross, acting at the
behest of Trump, for lying to the public and the courts, including the Supreme
Court, “from the time he entered office,” acting in “bad faith,” spinning a
story that appears “contrived,” “incongruent” with what at least two
departments, Commerce and Justice, with White House complicity, actually did, a
“disconnect between the decision made and the explanation given.”
On
earlier occasions, in 2012 and 2015, Roberts provoked venomous, lasting fury
from numerous Republican politicians, advocates, and voters, when he twice
upheld the Affordable Care Act against challenges that would, if granted, have nailed
to the wall the Republican party’s top policy priority of extinguishing
Democrats’ premier 21st century accomplishment.
The court’s 2022-23 term startled observers with unexpected rebuffs to propositions
long brandished by the legal right—including the Chief Justice. In that term,
Roberts, after decades of fuming against the 1965 Voting Rights Act, lauded
the VRA for “creating stringent new remedies attempting to forever banish the
blight of racial discrimination in voting … the most successful civil rights
statute in the history of the nation.” In another welcome surprise, he put the
kibosh on the notoriously antidemocratic “independent state legislature theory,”
or ISLT, which would empower state legislatures to override their state’s
voters’ choices in elections for federal office. In his opinion, Roberts reaffirmed
a 2015 5-4 decision that had rejected ISLT, to which he had filed a vehement dissent.
Naturally,
Justices Samuel Alito and Clarence Thomas have dissented from most of these
tacks to the center or left. But to conflate their admittedly partisan, inflexibly
hard right regimen with the other four conservative justices does not fit the
facts. As Professor Vladeck has elaborated.
this sort of it’s-all-partisan-politics ‘doomerism’” is, “as a factual matter,
simply silly.” Even as regards the Trump administration, Vladeck details, “law
and legal constraints are having a major influence … consider[ing] the (many)
cases in which the Trump administration is losing in the lower courts, not
appealing, or not seeking emergency relief while it appeals (so the lower court
decisions are going into effect, and complying with adverse rulings).”
To
ignore those four justices’ periodic turnabouts, and the Trump Justice
Department’s attentiveness to signals of the limits of their deference, is not
merely inaccurate. Far more important, declining to acknowledge the justices’
swerves, and suss out where and why they are likely to draw lines, amounts to
cursing the darkness instead of lighting a candle. Lighting that candle
requires building a fact-based foundation for pursuing what all liberals’
overriding goal must now be: turning back Trumpism’s existential threat to the
Constitution.
Any
plan for achieving that goal must feature workable strategies for preserving the
independence that the federal courts, especially the Supreme Court, require to execute
their core mission of upholding the rule of law. Liberals of all stripes should
be laser-focused on framing legal and political advocacy to reinforce the
justices’ recognition of their institutional imperative to prioritize its
defense, their strategic acuity, and confidence that they and their allies can
prevail. As of now, the conservative justices are not there. Liberals need to
mobilize political, media, and public support sufficient to reverse the Supreme
Court’s apparent drift toward political irrelevance.
Perceptions
of that drift have generated a second explanation—not partisan so much as calculated.
This view casts the court’s ducking and finessing as delaying actions to
postpone an interbranch collision which the justices fear they could lose, with
catastrophic implications for the federal judiciary’s clout and stature,
especially that of their own court. Albeit speculative, this take is hardly
implausible.
Indeed,
at least in part, risk avoidance must color the thinking of Chief Justice
Roberts and the three Trump appointees who, ironically, are Trump’s least
reliable conservative allies. This past Saturday, September 13, Harvard law
professor and senior Obama official Cass Sunstein asserted,
citing unnamed but “authoritative” sources, that the justices are “aware that the
president might say, ‘we’re not going to follow what [the Supreme Court] orders.’”
Senior administration officials, including the Vice President and the Director
of the Office of Management and Budget, have in fact threatened just that.
But
such a fear-of-confrontation strategy is hard to square with how poorly much of
the court’s pusillanimous maneuvering is working, or can work. To build the
public and political support requisite to gain the upper hand in this political
struggle the court cannot avoid and must lead, the justices’ priority should be
to shore up perceptions of its own legitimacy and fidelity to the rule of law.
But
that’s not happening. As George Washington University law professor and veteran
constitutional litigator Alan Morrison put
it: “The Trump administration’s string of procedural victories poses a
problem for the perceived legitimacy and neutrality of the Supreme Court and
encourages the president to continue pressing his advantage until the justices
clarify whether his actions are lawful.” More generally, the justices do
themselves no favor to encourage their one-time brethren on the political right
to see them as gettable pawns of this newly radicalized Republican Party’s drive
for unconstrained power.
Players
as seasoned as, say, John Roberts or Brett Kavanaugh, must recognize these
perils of their current seeming drift. I would suggest a third explanation. Not
just partisanship or (misguided) political strategy. These justices could be
paralyzed by a self-inflicted jurisprudential/ideological dilemma: To quash
Trump’s campaign to subvert the Constitution, and incinerate the court’s
institutional primacy as its oracle, the justices must somehow extricate
themselves from doctrinal quagmires that they themselves have dug.
Indeed,
Trump’s Justice Department litigators have brandished some of these
jurisprudential confections to justify the administration’s lawless machinations.
Something has to give: Either the justices must drop ploys they have embraced,
largely to augment their own power, or shirk their core mission and undermine
their raison d’etre as a co-equal federal branch. So far, they have been
unwilling to face up to that choice.
Consider
how doctrinal inventions embraced by the Roberts court stand athwart its path
to stand up to Trump’s drive for unchecked control of the Federal Reserve. As I
and others have written, compromising the Fed’s independence would saddle the court with impossible-to-hide responsibility for “crashing” the national and
global economies. But avoiding such a catastrophe would run head-on into a
constitutional “unitary executive theory,” which, though lacking any textual or
historical (that is to say “originalist”) foundation, has progressively been
ratcheted up in Roberts court opinions.
In April of this year, I wrote
that the court might well back off following the theory to its logical end
point, and not free presidents to summarily fire, without cause, heads of
multi-member heretofore independent agencies exemplified by the Fed. Even
conservative financial legal experts saw no principled basis, “no
Court-approved avenue” to distinguish the Fed from other multi-member
independent agencies like those involved in a then-pending case, the National
Labor Relations Board (NLRB), and the Merit Systems Protection Board (MSPB).
However, to the surprise of most court-watchers, all six
conservative justices in a May 22 shadow docket ruling opted to
try to have their cake and eat it too. In a gratuitous aside, they signaled
that, when the case returns for a final ruling on the merits, they would rule
that the unitary executive theory is good constitutional law and invalidates
the “for-cause removal” restrictions that Congress for well over a century has
placed on presidents’ ability to fire myriad sensitive multi-member
commissioners or board members.
However, they foreshadowed that they would make this seismic constitutional
rewrite inapplicable to one such agency, the Fed. For this ad hoc
carve-out, they did not so much as purport to offer a legally coherent basis.
On the contrary, they contended in effect that no such principled legal
distinction was necessary. They put forward a single sentence: “The Federal
Reserve is a uniquely structured, quasi-private entity that follows in the
distinct historical tradition of the First and Second Banks of the United States.”
The problems with this ipse dixit assertion are as numerous as they are
blatant– weasel-worded, factually inaccurate, and in any event lacking legally
probative force.
For Trump and his strategists, unitary executive theorizing
is not some abstract ideological plaything. It has always been a gambit aimed
precisely at enabling Trump to gain full control of the Fed—for all the reasons
that its 1913 congressional creators and judicial interpreters since then have buttressed
the walls around its independence. So, the Trump strategists called the court’s
bluff, and in so doing obtained a bullet that the justices cannot dodge. Rather
than challenge the justices’ law-free assertion that for-cause removal remains
uniquely applicable to the Fed, they have come up with a purported interpretation
of the statutory term “for cause,” that will, if a majority of the
justices can be bullied into accepting it, render the statutory guarantee of
independence meaningless in practice.
As conservative financial legal expert Peter Wallison explained
in National Review, the Trump Justice Department’s claim, that the
President may remove a Fed governor on the basis of a mere allegation of a
personal error—“solely the word of a person likely eager to win praise (or
more) from President Trump”—is functionally indistinguishable from terminable-at-will
status. To preserve the Fed as a bulwark of national and global financial
stability, the court must rule that the administration’s gutting
“interpretation” doesn’t match the reasons for, hence the legal requirements of
the “historical tradition” it credited with safeguarding the Fed’s independence.
But to thus rule unitary executive theory inapplicable to
the Fed, the court will lay bare the incongruity of stripping independence from
other identically structured agencies with sensitive missions, such, for
example, as the Federal Communications Commission, or the aforementioned NLRB and
MSPB. No ingenious rationale will dissuade anyone from seeing the court’s selective
application of the unitary executive scam to empower itself to pick winners and
play political favorites, rather than apply standards recognizable as law.
The case that Trump may consider the single most provocative
threat to his presidency is a challenge
to the legality of his new tariffs, filed by five businesses harmed by the
tariffs represented by libertarian law professor Ilya Somin, and by 12 blue
states led by Oregon. At the urging of all parties, the court has expedited the
case and will hear oral argument the first week of November.
Trump’s lawyers rely on a 1977 law, which provides that,
after declaring an “economic emergency,” the President may “regulate” the import
or expert of a foreign-owned property. In May, the Court of Appeals for the
Federal Circuit ruled the tariffs illegal, reciting that the power to “regulate”
has always been held “distinct” from the power to tax—a power which the
Constitution confers exclusively on Congress. In reviewing that ruling, the
justices will be well aware of the compelling statutory and constitutional text
expressly supporting the appellate court’s judgment. But they will also be
aware, as Cass Sunstein observed, that “there will be hell to pay if they go
against the president on tariffs.”
However, for any member of the court’s conservative bloc
considering avoiding that “hell,” an especially thorny obstacle looms: the
so-called “major questions doctrine,” devised–or more precisely, transmuted–by
conservative justices over the last decade into an artifice empowering the court to ignore pertinent statutory text to strike down any agency actions portending
“vast political or economic significance.”
Over the past decade, the court’s conservatives have deployed
“major questions” to shut down Obama-adopted Clean Act regulations and Biden’s
eviction moratorium, Covid vaccine mandate, and student loan repayment
forgiveness. As Washington Post columnist Jason Willick has noted,
“Trump’s tariffs, which the Justice Department says could raise $4
trillion in the coming years, eclipse any of these policies in economic and
political significance.” Failure to axe Trump’s tariffs will, as Willick
observed, lay bare that the major questions artifact is for these
Republican-appointed justices, solely “a check on Democratic presidential
power.” (Emphasis in the original.)
Hence, with altogether appropriate irony, a line of some of
this court’s most transparently partisan wrongs striking down Democratic
regulatory initiatives could box it in to right a blatantly illegal wrong
committed by the current Republican White House occupant.
What can those who
would steer the justices back on track do? Here, there are numerous examples to
follow. Well-packaged media, political, and legal advocacy, targeted at swing
justices’ known issue interests, supplemented the Obama Justice Department
litigators’ successful defenses of the ACA. The ACLU’s legal director, David
Cole, has detailed
the techniques that same-sex marriage
advocates, Second Amendment advocates of individuals’ right to bear arms, and
civil liberties advocates’ for war-on-terror sanity deployed to entrench
landmark changes in Supreme Court constitutional jurisprudence.
And liberal and other rule-of-law friendly politicians would
do well to read the liberal justices’ dissents to the current majority’s forays
into what Justice Elena Kagan has skewered as “law-free” zones, and incorporate
their media-friendly stingers into their own messaging—targeting the hugely
unpopular assaults on everyday Americans’ rights and needs that the conservative
legal movement hopes to wring from the Supreme Court, in the shadows. To get
the court back in its rule of law lane, liberals have their work cut out for
them. But it can be done.
The post The Supreme Court’s Trump Enablers May Have Screwed Themselves appeared first on New Republic.
