Facing this Court

A Sober Look at What to Expect in Trump v. Casa And What We Do About It

“None of this means that I am conceding defeat at this point. To the contrary. Even if, as I now believe, the conservative majority would be likely to rule in the President’s favor in Trump v. Casa if the merits were before them today, does not mean that the Court will in fact, ultimately rule in his favor. There’s still time. But it does mean that we must think now about how to create the conditions that can diminish the majority’s willingness to take such a dangerous step, and we must prepare the public for what it will mean if they do.”

I have spent a fair amount of time since last summer’s decision in Trump v. United States[i] trying o understand the contours of presidential power in the eyes of justices who constitute the conservative majority on the Supreme Court. Announcing that the President of the United States has immunity for any crimes committed in office so long as his actions could plausibly be described as “official acts,” was an astonishing and dangerous conferral of power on the president – especially on this president - who had shown himself in ways great and small, to be likely to use the cloak of immunity to commit acts even more lurid if he were returned to office than he had in his first term. Trump won the election, and his actions in Trump 2.0 reflect his full understanding of the gift of impunity provided by the Supreme Court.

So what is this conservative majority’s understanding of presidential power? Do they truly not see the danger to the country of a fully unrestrained president? My conclusion a year later is simple. We must with clear eyes confront the only reasonable explanation for the actions of the conservatives on the Supreme Court over the past two years. The conservative majority on this SCOTUS is fully aligned with President Trump’s vision of his Executive power. Not because they are “up to something,” or because of “moneyed interests.” But because the conservatives on this Court have come to genuinely embrace the MAGA vision of Trump’s presidential power. They are aligned with his claim to unfettered executive power, and they do not intend to restrain him.

Precedent, the public interest, the integrity of lower courts and even, I fear, the Constitution must yield, they believe, to that vision.

Yesterday’s decision in McMahon v. New York,[ii] granting a stay of the district court decision enjoining Trump from taking action to close the Department of Education is consistent with this. Issuing no decision to support this extraordinary decision that will dismantle a nearly 50-year-old federal agency is shocking, but only if we continue to believe that there is any other rationale for the Court’s decision besides the obvious one. It has been long understood that agencies created by Congress can only be shuttered by Congress. Even President Reagan, who announced his campaign for the presidency on a platform that including closing the Department of Education, knew that he could not do so unilaterally. In his first address before both houses of Congress, he made a plea to Congress to join him in fulfilling that campaign promise.[iii] Reagan never could convince Republicans in Congress to support his plan, and so the Department of Education continued its work, rooting our discrimination in educational services, financing every IEP for school children in the country, providing funds to support state shortfalls in education and administering Pell Grants.

Now by granting the stay sought by the Trump Administration, the Supreme Court has allowed Trump to dismantle the Department of Education during the pendency of the litigation. Which is to say, they have allowed Trump to unilaterally dismantle a federal agency created and funded by Congress – not after trial on the merits and appellate review. Not in a carefully crafted decision explaining its rationale. But on the shadow docket and without a word of explanation.

The Court could not make that decision unless it believed that Trump would win the case on the merits. After all there will be no Department of Education to activate after months of litigation, if the Supreme Court later determines that Trump lacked the power to end the Dept. This lifting of the stay imposed by the District Court on Trump’s action tells us that a majority of the justices believe that after litigation on the merits, they would likely conclude that Trump’s actions do not violate the Constitution.

I now believe that the conservative majority on this Court is likely prepared to accept Trump’s argument for overriding the Constitutional guarantee of birthright citizenship. The rationale for such an egregious decision? I cannot fathom. But neither could I imagine the rationale in the immunity decision. They truly believe that Trump’s power should not be constrained.

Once you accept the proposition I have outlined above, then you must accept that finding a rationale to uphold this anti-constitutional usurpation of power by Trump, may be the only project occupying the majority as the merits of the case makes it way up to them, not whether to uphold it.

If we’re honest, the signs have all been there. I have been troubled by the Court’s refusal – at oral argument in Trump v. Casa, or in its voluminous majority opinion and concurrences -- to make even a passing reference to the merits of the case. At oral argument, Justices Sotomayor and Kagan, especially talked about the potential consequences of a decision in the national injunction question within the context of the birthright citizenship guarantee. The six justices in the majority maintained scrupulous silence – an odd stance to take in a case challenging a specific constitutional right. Justice Coney Barrett’s majority opinion treats the Court’s silence about the merits as a restrained virtue of its decision. I do not believe that to be the case. The majority’s refusal to say even a word about the monumental context in which the nationwide injunction issue came to the Court seems….ominous.

Compare the voluminous opinion in Trump v. Casa to the Court’s brief opinion accompanying its order granting a stay of the order enjoining Trump from firing the heads of the National Labor Relations Board and the Merits Systems Protection Board in Trump v. Wilcox.[iv] After reminding us that the stay grant was “not designed to conclusively determine the rights of the parties,” but to “balance the equities as the case moves forward,” the majority devoted a paragraph to explaining why the interim relief it provided to the Administration in Wilcox would not “implicate” the President’s removal of Federal Reserve board members.” Although Trump has railed in the press against the refusal of the Fed Chair Jerome Powell to lower interest rates, and has mused about firing Powell, removal of officers of the Fed was simply not before the Court. To date Trump has made no move to fire Powell.

Beyond the dubious basis for the Court to advance a “carveout” for the Federal Reserve,[v] is the even more dubious decision of the Court to write to narrow the reach of a stay order to an issue not before it, and that had not even occurred yet. Perhaps it was a pragmatic move by the Court to protect the markets, but the conservative majority has shown little concern for the consequences of many of its other decisions related to presidential power. The Court’s discussion of the Fed in the Wilcox case, makes the Court’s assiduous silence in Trump v. Casa about an EO that purports to overrun an explicit constitutional right, looks less like justices exercising discipline, and more like justices hiding their hand until the right moment.

None of this means that I am conceding defeat at this point. To the contrary. Even if, as I now believe, the conservative majority would be likely to rule in the President’s favor in Trump v. Casa if the merits were before them today, does not mean that the Court will in fact, ultimately rule in his favor. There’s still time. But it does mean that we must think now about how to create the conditions that can diminish the majority’s willingness to take such a dangerous step, and we must prepare the public for what it will mean if they do.

How do we address what may be the Court’s likely inclination to side with Trump on the birthright citizenship issue? I have no doubt that the litigators are doing their part. They are fully equipped with the arguments, the legislative history, the historical context and will provide the briefing and oral advocacy needed to win this case when it comes before the Supreme Court. The amicus briefs filed in the case will be plentiful and illuminating. This case should, by all rights, be a slam-dunk for the Casa lawyers.

But I worry that a decision in this case upholding Trump’s EO would be a catastrophic moment for democracy in this country. We need the engagement of all Americans in working to head off this moment, and in recognizing what it means if we are unable to do so.

If we are to create the conditions that will make the conservative majority on this court (frankly Justices Roberts and Coney Barrett) hesitate in making an extraordinary and unconstitutional announcement of presidential power, we must imbed the knowledge that the lawyers and historians know among the people, not just the Court. We must create an atmosphere of expertise about birthright citizenship, and about the 14^th Amendment, and about its significance in our lives.

Moreover, should this Court take the extraordinary step of authorizing this President to override an explicit constitutional right, then every American must be fully cognizant of the magnitude of this decision.

It begins with educating the public. To that end, the 14^th Amendment Center for Law & Democracy will be hosting a set of webinars, or “teach-ins,” during the first two weeks of September designed to equip ordinary Americans with the information you need to see with clear eyes the choices the Court will be facing as it decides the merits of this case. We cannot fight effectively when we are uninformed. When some still believe that the core issue in this case is about “migrants” and not about whether democracy and the rule of law will survive in our country, we must bring the information to the people. Every American should know – must know – what is at stake in this case.

So, look for registration information next month. The webinars will be free and open to all who register up to our capacity to accommodate. We must be equipped with the truth if we are to fight. Let’s go!

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[i] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

[ii] https://www.supremecourt.gov/opinions/24pdf/24a1203_pol1.pdf

[iii] https://www.presidency.ucsb.edu/documents/address-before-joint-session-the-congress-reporting-the-state-the-union-2

[iv] https://www.supremecourt.gov/opinions/24pdf/24a966_1b8e.pdf

[v] See e.g., Lev Menand, The Supreme Court’s Fed Carveout: An Initial Assessment, Columbia Law Research Paper (forthcoming) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5266613