The Supreme Court restrained Trump last time. Will it do so again?

The Washington Post / Justin Jouvenal, Ann E. Marimow

12:47 JST, December 2, 2024

Donald Trump’s greatest legacy is arguably the conservative supermajority he created on the Supreme Court. His second term could put him on a collision course with the institution he reshaped.

With Republican allies controlling the House and Senate, the Supreme Court could emerge as the most likely check on the president-elect’s promise to assert sweeping powers – in ways that could test the boundaries of the law and the Constitution.

If pursued, Trump’s controversial agenda to deport undocumented immigrants en masse, end birthright citizenship, impose extensive tariffs, fire or relocate thousands of federal workers and abolish the Department of Education would surely unleash a flood of legal challenges.

Trump has lost at the Supreme Court more than any other modern president, according to one study, and several recent high court rulings that curbed the power of regulatory agencies could hem in his agenda. At the same time, Trump’s three nominees have moved the Supreme Court further to the right, establishing a supermajority that greatly expanded the definition of presidential immunity.

Legal scholars and advocates say they expect Trump to suffer additional legal setbacks in a second term, especially on his more extreme proposals. The biggest question, several said, is how far the justices would go in restraining Trump – and what Trump, who has denigrated courts and vowed to be a dictator for the first day of his second term, will do if he disagrees with a ruling.

“I don’t have any faith that the court is going to stand up to Trump in all cases,” said Steve Vladeck, a Georgetown University law professor who closely tracks the work of the court. “But I think it will stand up to him in some cases, and the question is then what?”

Will the Trump administration comply with adverse Supreme Court decisions as it did during the first term, Vladeck asked. “Or are we going to see, the sort of break the glass conversations?” he said. “That to me is the real big picture question looming over the court right now.”

During Trump’s first term, he suffered a series of high-profile losses at the court.

The justices initially refused to allow Trump to fully enact his proposed travel ban that barred some foreigners from entering the United States, blocked the administration’s efforts to put a citizenship question on the 2020 Census and rescind an Obama-era plan to protect young undocumented immigrants known as “dreamers” from deportation. Trump also lost a pair of disputes in 2020 over subpoenas from Congress and the Manhattan district attorney for Trump’s financial records.

In all, the Trump administration was unsuccessful in nearly 60 percent of its cases before the high court, according to an analysis by University of Southern California law professors Rebecca L. Brown and Lee Epstein. The defeats have prompted Trump to lash out at the court at times.

“Why would anybody be surprised that the Supreme Court has ruled against me, they always do!” Trump wrote on Truth Social in 2022 after the Supreme Court decided a congressional committee could obtain his tax returns. “Shame on them!”

But Trump will face a different court this time around, one that could be more amenable to his arguments.

He placed three conservatives on the high court – Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, shifting the balance in many cases from a narrow 5-4 conservative majority to a 6-3 split.

The conservatives issued a sweeping ruling last term giving presidents broad immunity from criminal prosecution for official actions taken while in office, saying the protection from prosecution would ensure an energetic and independent president. Liberal Justice Sonia Sotomayor wrote in a scalding dissent that the president is “now a king above the law” in his official role and could, for example, order Navy SEALs to kill a rival without legal consequence.

“Trump is trying to shift the constitutional balance,” said Michael Waldman, president of the Brennan Center for Justice at NYU School of Law. “In the past, the Supreme Court has pushed back. This Supreme Court should, but it’s an open question of whether it will.”

Chief Justice John G. Roberts Jr. could play a pivotal role. During Trump’s first term, Roberts often joined the four liberal justices in ruling against the president’s initiatives. In the last term, Roberts sided with his fellow conservatives in the high-profile cases that divided the court along ideological lines.

“Part of what happened is that Roberts has shifted to the right to be relevant,” said Kermit Roosevelt, a University of Pennsylvania law professor. “Roberts doesn’t like to be in dissent; he likes to be in charge as much as he can.”

Many details of Trump’s plans have yet to be sketched out, so it’s difficult to analyze their legality or how the Supreme Court might rule on them, some conservative law professors said. Trump has failed to act on many of his bolder pledges in the past, and some of his initiatives were nixed by the courts for not following rulemaking procedures.

Jonathan H. Adler, a professor at Case Western Reserve, pointed out the Supreme Court has significantly limited the power of federal agencies in recent terms, which could put a brake on Trump’s agenda.

In one major 2022 ruling, the court required federal agencies to have clear authorization from Congress when making politically or economically significant regulations. In the other, this June, the court did away with a 40-year-old precedent that had required courts to defer to how agencies implement laws in areas where Congress has not given explicit guidance.

“The court has made clear it’s going to enforce certain types of constraints on federal power,” Adler said. “That could certainly constrain the ability of the Trump administration to advance policies by executive fiat, just as it constrained the Biden administration.”

Adler said one caveat is that courts have given presidents wider latitude to act in two areas that particularly interest Trump – trade and immigration. Even so, Adler said Trump’s pledge of massive tariffs on some imported goods could test the limits of his authority.

Elon Musk and Vivek Ramaswamy, whom Trump has tasked with shrinking the federal government through a new, advisory “Department of Government Efficiency,” have said they would use the recent Supreme Court rulings as a road map to identify regulations that Trump could kill.

Other Trump proposals could face legal obstacles, including his promise to end birthright citizenship, which courts have long interpreted as guaranteed by the 14th Amendment.

“I think it has less than zero chance,” said Clark Neily, the senior vice president for legal studies at the libertarian Cato Institute. “We’re not going to amend the Constitution to eliminate that provision, and that’s what it would take.”

As president, Trump could also attempt untested applications of dusty laws. He has said he would invoke the Alien Enemies Act of 1798 to round up immigrants and the Insurrection Act of 1807 to use the military to crack down on protests.

Trump has pledged to reclassify thousands of federal workers – a process known as Schedule F – making it easier to fire them, and to move up to 100,000 federal employees out of the D.C. area.

Donald Moynihan, a professor of public policy at the University of Michigan who has studied Schedule F, said Trump’s move may go beyond the scope of the law governing the civil service and rests on a novel reading of its powers.

“I don’t believe the intention of Congress when passing the Civil Service Reform Act was to give presidents expansive new appointment powers like Schedule F,” Moynihan said.

Federal workers’ unions have pledged to mount vigorous legal challenges to Schedule F, and the Biden administration has enacted new safeguards for workers that would make it more difficult to strip their protections. Still, some experts thought courts might uphold a Schedule F effort.

“There is the case that the Schedule F proponents will make that … the current civil service laws give the president broad power to create new schedules and move feds into them; and that the founders intended for the president to have broad dismissal power,” said Donald F. Kettl, former University of Maryland dean and professor of public policy.

Another Trump promise – to avoid confirmation battles by appointing Cabinet secretaries while Congress is in recess – could face fewer legal challenges, Roosevelt said. It would mark a departure from the separation of powers design of the Constitution, but there’s not much the court could do about it if the GOP-controlled Senate voluntarily went into recess and stepped out of Trump’s way.

Several legal experts posed the question of whether Trump might try to defy adverse Supreme Court rulings, provoking a constitutional crisis. Adler said it was difficult to make such predictions without the context and details of a concrete case.

“In the abstract I don’t know what that means,” Adler said.

In 2022, before he was tapped for the presidential ticket, Vice President-elect JD Vance suggested in an interview that Trump should replace every “mid-level bureaucrat” in the federal government with Trump loyalists.

“And when the courts stop you,” Vance said, before paraphrasing a famous and likely apocryphal quote attributed to Andrew Jackson, “stand before the country, and say, ‘The chief justice has made his ruling. Now let him enforce it.’”

Neily said Trump could be in no mood to heed the judicial branch after multiple prosecutions and civil judgments ordering him to pay millions.

“If the Supreme Court tells him some really important part of his immigration agenda is unconstitutional, and he perceives that as indispensable for what he is trying to accomplish, I wouldn’t want to bet which way that goes,” Neily said. “It would be an extraordinary violation of history and norms.”