The one big question looming over Trump’s power grabs

Much of what Donald Trump has done in his first eight days back in the White House is legally unjustifiable. What’s uncertain is whether the Supreme Court will do anything to stop him.

In two particularly egregious cases, Trump ordered an end to birthright citizenship for many Americans, and ordered the federal government to pause spending on a wide range of federal grants and loans already approved by Congress. While the order announcing the pause is confusing, early reporting suggests that tens of billions of dollars could be cut off (although the White House argued the order is more limited than it appears).

In both cases, the law is clear. The Reagan-appointed federal judge who blocked Trump’s birthright citizenship order said that in his 40 years on the bench he “can’t remember another case where the question presented is as clear as this one is.” (Birthright citizenship is a right enshrined in the Constitution.)

Similarly, the Department of Justice has long warned that there is no argument to justify a president’s decision not to spend money appropriated by Congress. As future Chief Justice William Rehnquist wrote in a 1969 DOJ memo, “it is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”

Assuming that Trump actually wants these orders to take effect — and it’s possible that they are nothing more than political stunts — he appears to be making a risky bet. The premise of many of Trump’s executive actions appears to be that the Supreme Court will let him get away with things that aren’t just illegal, but that, until recently, weren’t even considered debatable.

Sadly, the outcome of this bet is uncertain. A year ago, the idea that presidents are allowed to use their official powers to commit crimes was also considered laughable. Among other things, why would then-President Gerald Ford have pardoned former President Richard Nixon in 1974, for crimes Nixon allegedly committed using the power of the presidency, if Nixon were already immune from prosecution?

And yet, the Supreme Court’s Republican majority did not simply give Trump immunity from many of the crimes he allegedly committed during his first term, they went out of their way to specify that Trump can order the DOJ to target his enemies and nothing can be done to him.

The Republican Court’s hands-off approach to Trump contrasts sharply with the extraordinary oversight it applied to Democratic President Joe Biden. During the Biden administration, the Republican justices fabricated entire legal doctrines — such as its so-called major questions doctrine — which allowed it to strike down policies that were explicitly authorized by federal law.

The Supreme Court, in other words, functions less and less like a court of law, and more and more like another arena for partisan politics. Both parties choose justices based largely on whether those appointees are likely to toe a partisan line on a long list of legal questions. And all nine justices have behaved more or less as you’d expect someone chosen through such a partisan process to behave.

All of that said, the Court does sometimes balk at the most outlandish right-wing legal arguments that land on its doorstep. The Supreme Court routinely reverses the US Court of Appeals for the Fifth Circuit, for example, which has become a breeding ground for far-right legal theories that would do lasting harm to the Republic if they were ever taken seriously. Last term, a 7-2 Supreme Court rejected a Fifth Circuit decision that could have seized up the entire US mortgage industry and caused an economic depression in the process.

So, if you’re asking whether this Court will block any of Trump’s illegal actions, the only honest answer that any lawyer can give is “I don’t know.” The current panel of justices are more partisan than any of their predecessors. But they do sometimes reject legal arguments supported by the rightmost fringe of the Republican Party.

After the Court’s Trump immunity decision, it is a dangerous game to predict the outcome of any future Supreme Court decision. Still, when the Court has ruled against Trump, or against aggressive right-wing legal arguments made by other litigants, those decisions have tended to fit into one of three boxes.

1) At least some of the Republican justices — and especially Chief Justice John Roberts — will sometimes punish very conservative litigants for bad lawyering. Recall, for example, that the Deferred Action for Childhood Arrivals (DACA) program for undocumented youth survived the first Trump administration largely due to that administration’s refusal to correct a paperwork error.

Similarly, in a Census Bureau case, Roberts essentially accused the Trump administration of lying about why they wanted to change the 2020 census form in a way that was likely to discourage noncitizens from participating in the census. In a 2023 voting rights case, Roberts and Justice Brett Kavanaugh shocked pretty much everyone who follows this area of the law by leaving in place legal protections against racial gerrymandering. Roberts’s majority opinion mocked the lawyers seeking to eliminate those protections for relying on arguments that run “headlong into our precedent.”

So it’s, at least, possible that the Court will punish the second Trump administration for making legal arguments that no reasonable lawyer would make. The Court may decide that the arguments against birthright citizenship, for example, are so weak that they should be rejected.

2) Most of the Republican justices are cautious about legal arguments that would cause massive harm to the US economy. In CFPB v. Community Financial Services Association (2024), for example, the Fifth Circuit declared the entire Consumer Financial Protection Bureau unconstitutional. As the banking industry warned the justices in an amicus brief, without the CFPB, banks would have no idea what rules they need to comply with in order to issue many loans. The entire US mortgage market could have seized up if the Fifth Circuit were affirmed.

But that didn’t happen. The Supreme Court ruled that the CFPB is legal in a 7-2 opinion by Justice Clarence Thomas.

Similarly, in Collins v. Yellen (2021), several Fifth Circuit judges tried to unravel about $124 billion in transactions a federal agency engaged in to rescue the housing market during the 2008 recession. That case also could have generated enough chaos to cause an economic depression. But it didn’t. The Supreme Court largely rejected the case against these transactions in an 8-1 decision by Justice Samuel Alito.

Some of Trump’s proposed economic policies, such as the high tariffs he keeps threatening to impose, could do such severe damage that some of the justices may see them the same way they saw the CFPB and the Collins case.

3) Three of the Republican justices — Roberts, Kavanaugh, and Justice Amy Coney Barrett — have fairly consistently voted with the Court’s Democratic minority in cases involving the First Amendment. These three justices joined the Democrats in rejecting Texas’s attempt to seize control of content moderation on the major social media platforms, for example. They also joined the Democrats in ruling that the Biden administration may ask social media companies to voluntarily pull down content — such as terrorist recruitment videos or false medical advice — which the government believes to be harmful.

It’s hard to know how much significance to read into these cases, since most of Trump’s executive actions so far do not raise First Amendment concerns. But Roberts, Kavanaugh, and Barrett’s First Amendment decisions do indicate that there are still some areas of the law where they will act consistently with longstanding precedents. That suggests there may be other areas where these three justices will follow existing law and not whatever legal theories come out of the Trump administration.

Taken together, these three buckets suggest that the Supreme Court is likely to impose some limits on Trump’s ability to govern as a dictator. But, it’s also possible that the Court decides to support Trump’s efforts to expand presidential power. And, after the Trump immunity decision, it is no longer possible to predict where these justices will behave like judges, and where they will behave as Republican political operatives.