By John Kruzel
WASHINGTON (Reuters) – President Donald Trump’s sweeping assertions of executive power during his first weeks back in office appear headed toward U.S. Supreme Court showdowns, but it remains an open question whether or how much the justices might act to check his authority.
Since taking office on January 20, Trump’s views of presidential authority appear far less restrained than those of his White House predecessors, according to legal scholars, citing actions such as seeking to restrict birthright citizenship, withholding funding appropriated by Congress and removing heads of independent federal agencies.
“The unifying theme is an extreme view of presidential power unlike anything we have seen before,” said Erwin Chemerinsky, dean of the University of California Berkeley School of Law.
Trump prevailed in three major cases last year at the Supreme Court, whose 6-3 conservative majority includes three justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – he appointed during his first term as president. The court has moved U.S. law steadily rightward with Trump’s picks on the bench.
“The Trump administration is gambling that the court won’t be an effective firewall, and the administration has decent odds on its side,” Harvard Law Professor Mark Tushnet said.
Trump’s actions have prompted dozens of lawsuits now proceeding through lower courts. They involve challenges to actions such as his hardline steps on immigration, federal workforce protections, the legal status of an entity created by Trump and led by billionaire Elon Musk dedicated to slashing the U.S. government and his moves to restrict transgender rights.
The Supreme Court could be called upon in the coming weeks or months to act in a challenge to Trump’s policies, depending on how quickly appeals move through the lower courts.
Some of the plaintiffs have accused Trump of usurping the authority of Congress, as set out in the U.S. Constitution. While Trump’s fellow Republicans who control Congress have offered scant resistance, these actions by Trump may be vulnerable to being declared invalid by the judiciary, according to University of Illinois Chicago law professor Steve Schwinn.
Schwinn cited Trump’s efforts to unilaterally shut down federal government agencies – which are created, funded and given authority by Congress – and his attempt to cut off federal spending appropriated by U.S. lawmakers.
“These efforts most clearly encroach on congressional authority, and are least obviously supportable by the president’s Article II powers,” Schwinn said, referring to the Constitution’s language delineating presidential authority.
Federal judges acted to halt Trump’s attempt to freeze federal grants, loans and other financial assistance even after the White House’s Office of Management and Budget rescinded its wide-ranging directive announcing the funding freeze.
Boston University School of Law professor Robert Tsai said Trump would be likely to lose if that dispute comes before the Supreme Court. Weighing against Trump is the Constitution’s separation of powers between the U.S. government’s executive and legislative branches, as well as federal law and the Supreme Court’s own prior decisions, Tsai said.
“I can easily imagine five votes to brush him back on this,” Tsai said, referring to the majority threshold on the court.
BIRTHRIGHT CITIZENSHIP
Lower courts have blocked for an indefinite period Trump’s attempt to narrow birthright citizenship. Trump had directed U.S. agencies to refuse to recognize the citizenship of children born in the United States if neither their mother nor father is an American citizen or lawful permanent resident.
Democratic-led states and other plaintiffs have argued that Trump’s order violates a right enshrined in the Constitution’s 14th Amendment that provides that anyone born in the United States is a citizen.
The consensus among scholars interviewed by Reuters was that the Supreme Court likely would invalidate Trump’s birthright citizenship action if the case reaches the justices.
“I think that Trump will lose,” said John Yoo, who served as a Justice Department lawyer under Republican former President George W. Bush and is now a professor at UC Berkeley School of Law.
“The original understanding of the 14th Amendment, and subsequent Supreme Court opinions and government practice, require that everyone born in the United States become a citizen,” Yoo said.
Some scholars were less certain, predicting that at least some of the conservative justices might be open to narrowing the Supreme Court’s 1898 decision in a case called United States v. Wong Kim Ark. That ruling long has been understood to mean that children born in the United States to non-citizen parents are entitled to American citizenship.
Trump’s Justice Department has argued that the court’s ruling was narrower, applying to children whose parents had a “permanent domicile and residence in the United States.”
Cornell Law School professor Gautam Hans said, “I would hope that the Supreme Court would cleanly and categorically stop the birthright citizenship executive order, but I have learned better than to have confidence in this court.”
Hans said his view is that Trump’s actions in his first weeks in office pose a constitutional crisis representing “the greatest threat to American democracy since the Civil War” of 1861-1865, when states that allowed slavery rebelled.
“I feel a bit foolish in making such a sweeping claim, but I cannot think of another more dire moment,” Hans said.
A CONSERVATIVE COURT
Among the court’s actions cheered by conservatives in recent years were its 2022 decisions to roll back abortion rights and expand gun rights, its 2023 ruling to reject race-conscious collegiate admissions and various actions curbing federal regulatory agencies.
The most consequential of Trump’s three victories at the court last year was a ruling authored by conservative Chief Justice John Roberts that embraced Trump’s request for immunity after he was indicted on federal criminal charges involving his efforts to overturn his 2020 election loss to Democrat Joe Biden. It was the first time the court recognized any degree of presidential immunity from prosecution. The ruling gave former presidents broad immunity for official acts taken in office.
Two conservative justices would have to side against Trump in order for the court to rule against him in any case decided by the nine justices, assuming its three liberal members also oppose him. Trump would be able over the next four years to make fresh lifetime appointments to the court if any current members depart.
Some judges in lower courts have voiced alarm over Trump’s vision of his authority.
“It has become ever more apparent that to our president the rule of law is but an impediment to his policy goals,” Seattle-based U.S. District Judge John Coughenour said in issuing a nationwide injunction against Trump on birthright citizenship on Thursday. “The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain.”
Trump’s administration has filed a notice to appeal Coughenour’s decision.
A 1935 PRECEDENT
Scholars said Trump could prevail in some of the disputes over his executive orders that could reach the Supreme Court.
A former member of the National Labor Relations Board has argued in a lawsuit that in firing her Trump violated a federal law that allows a president to oust a board member only for neglect of duty or malfeasance in office, and no other cause.
The dispute could give the Supreme Court a chance to reassess its own 1935 precedent that has limited a president’s ability to fire certain agency heads. Some of the justices have signaled a willingness to rein in or perhaps overturn that ruling, in a case called Humphrey’s Executor v. United States.
“Given what a majority of the court has recently said about Humphrey’s Executor, Trump might win,” Tushnet said.
Yoo said that Trump’s efforts to eliminate diversity, equity and inclusion policies from government operations are the “most secure” among the president’s executive actions being challenged.
“If past presidents could establish DEI and affirmative action in government offices, then the current president can eliminate the programs,” Yoo added.
Yoo said that Trump’s first weeks back in office showed him exercising a broad conception of executive power, “one that draws on precedents from times of crisis and emergency in American history.” For instance, Trump declared a national emergency concerning illegal immigration along the U.S.-Mexican border, though critics have questioned whether emergency circumstances genuinely exist warranting the move.
“In those periods, presidential power expands – this was the very purpose that the Framers understood to be the purpose of a single chief executive,” Yoo added, referring to the 18th century authors of the Constitution. “The question is whether the United States is truly facing emergency circumstances.”
(Reporting by John Kruzel; Editing by Will Dunham)
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