The Supreme Court ruling barring judges from swiftly blocking government actions, even when they may be illegal, is yet another way that checks on executive authority have eroded as President Trump pushes to amass more power.
The decision will allow Trump’s executive order seeking to end birthright citizenship to take effect in some parts of the country — even though every court that has looked at the directive has ruled it unconstitutional. That means some infants born to undocumented immigrants or foreign visitors without green cards can be denied citizenship-affirming documentation like Social Security numbers.
But the diminishing of judicial authority as a potential counterweight to exercises of presidential power carries implications far beyond the issue of citizenship. The Supreme Court is effectively tying the hands of lower-court judges at a time when they are trying to respond to a steady geyser of aggressive executive branch orders and policies.
Presidential power historically goes through ebbs and flows, with fundamental implications for the functioning of the system of checks and balances that defines American-style democracy.
But it has generally been on an upward path since the middle of the 20th century. The growth of the administrative state inside the executive branch and the large standing armies left in place as World War II segued into the Cold War, inaugurated what the historian Arthur Schlesinger Jr coined the “imperial presidency”. Presidential power waned in the 1970s, in the period encompassing the Watergate scandal and the end of the Vietnam War. Courts proved willing to rule against the presidency, as when the Supreme Court forced President Richard M Nixon to turn over his Oval Office tapes. Members of both parties worked together to enact laws imposing new or restored limits on the exercise of executive power.
But the present era is very different. Presidential power began to grow again in the Reagan era and after the terrorist attacks of September 11, 2001. And now Trump, rejecting norms of self-restraint, has pushed to eliminate checks on his authority and stamp out pockets of independence within the government while only rarely encountering resistance from a Supreme Court he reshaped and a Congress controlled by a party in his thrall.
The decision by the Supreme Court’s conservative majority comes as other constraints on Trump’s power have also eroded. The administration has steamrolled internal executive branch checks, including firing inspectors-general and sidelining the Justice Department’s Office of Legal Counsel, which traditionally set guardrails for proposed policies and executive orders.
And Congress, under the control of Trump’s fellow Republicans, has done little to defend its constitutional role against his encroachments. This includes unilaterally dismantling agencies Congress had said shall exist as a matter of law, firing civil servants in defiance of statutory limits and refusing to spend funds that lawmakers had authorised and appropriated.
Last week, when Trump unilaterally bombed Iranian nuclear sites without getting prior authorisation from Congress or making any claim of an imminent threat, one Republican, Representative Thomas Massie of Kentucky, stepped forward to call the move unconstitutional since Congress has the power to declare war.
Trump reacted ferociously, declaring that he would back a primary challenger to end Massie’s political career, a clear warning shot to any other Republican considering objecting to his actions. Senator Lisa Murkowski, Republican of Alaska, recently told her constituents that “we are all afraid” of Trump.
But while the immediate beneficiary of the Supreme Court’s ruling is Trump, the decision also promises to free his successors from what has been a growing trend of district court intervention into presidential policymaking.
In the citizenship case, the justices stripped district court judges of the authority to issue so-called universal injunctions, a tool that lower courts have used to block government actions they deem most likely illegal from taking effect nationwide as legal challenges to them play out.
The frequency of such orders has sharply increased in recent years, bedeviling presidents of both parties. Going forward, the justices said, lower courts may only grant injunctive relief to the specific plaintiffs who have filed lawsuits.
That means the Trump administration may start enforcing Trump’s birthright citizenship order in the 28 states that have not challenged it, unless individual parents have the wherewithal and gumption to bring their own lawsuits.
The full scope of the ruling remains to be seen given that it will not take effect for 30 days. It is possible that plaintiffs and lower-court judges will expand the use of class-action lawsuits as a different path to orders with a nationwide effect. Such an option, Justice Amy Coney Barrett wrote in the majority opinion, would be proper so long as they obey procedural limits for class-action cases.
In a rare move that signalled unusually intense opposition, Justice Sonia Sotomayor read aloud a summary of her dissenting opinion from the bench on Friday. Calling the ruling a grave attack on the American system of law, she said it endangered constitutional rights for everyone who is not a party to lawsuits defending them.
“Today, the threat is to birthright citizenship,” she wrote. “Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief.” She, like the other two justices who joined her dissent, is a Democratic appointee. — The New York Times
Charlie Savage
The writer has been writing about presidential power and legal policy for more than two decades
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