‘King Trump’ is stronger than ever after US supreme court bolsters his agenda
Birthright citizenship ruling only a surface-level setback, with the court granting president’s multiple power grabs
The symbolic and high-profile defeats cannot obscure a more uncomfortable truth
The US supreme court– a vital cog in the US constitutional framers’ vision of an intricate system of checks and balances aimed at reining in an excessively assertive president – has made Donald Trump stronger than ever, and shows little inclination to stop
After a momentous term that ended with Tuesday’s rejection of Trump’s attempt to scrap birthright citizenship as a core tenet of American life, the court has acquiesced in multiple power grabs from the White House’s most consequential occupant in generations to leave a dramatically transformed political landscape
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The birthright ruling, upholding the right to citizenship of anyone born in the US, appeared on the surface to constitute a major setback to Trump on one of his signature issues
The apparent rebuff recalled the court’s rejection in February of the president’s use of the Emergency Economic Powers Act to impose tariffs on a vast panoply of imports. The verdict provoked a fierce personal attack from Trump on the justices that ruled against him – yet still left him free to pursue tariffs by other mechanisms
Closer inspection reveals a court that has shifted its perception of what is legally possible, while accommodating Trump’s extravagant and expansive view of his own presidential powers
Nothing illustrates the sea change in legal perceptions as the lackluster manner of the court’s support for birthright citizenship, legal scholars say
Moving the goalposts
Having previously voiced surprise at the justices’ willingness to even consider a challenge to a right once viewed as constitutionally sacrosanct, seasoned observers are alarmed that rather than display unanimity, four conservative justices challenged the long-held principle, enshrined in the constitution’s 14th amendment, that being born on US soil automatically confers citizenship
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Three of these justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – filed dissenting opinions, while a fourth – Brett Kavanaugh – concurred with the central judgment, but dissented in part, arguing that Trump’s bid to deny automatic citizenship to the children born to undocumented immigrants and temporary foreign residents violated federal law, but not the constitution
It is a sign of how far Trump has moved the goalposts and bodes ill for future rulings
“The fact that the what we call the Overton window has moved in order to make the position taken by Justices Thomas, Alito, Gorsuch and Kavanaugh even thinkable is revolutionary,” said Laurence Tribe, an emeritus law professor at Harvard University. “[It] suggests that the republic is hanging by thread. We are a heartbeat away from having a majority that fully adopts the Trump program.”
In multiple rulings, the court – which, as a result of Trump’s appointment of Gorsuch, Kavanaugh and Amy Coney Barrett, has a six-to-three conservative-liberal majority – already has adopted vast segments of the US president’s program, or at least measures that stood for decades as part of a rightwing Republican program previously viewed as distant, and possibly unattainable, aspirations
Now all manner of things taken for granted may be contested
Most significant for Trump’s grandiose interpretation of his own power, some say, was Monday’s ruling in the president’s favor in a case brought by Rebecca Slaughter, the former federal trade commissioner who was fired last March
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The court ruled that the president had the right to remove the head of any federal government agency at will, thereby overturning a 90-year-old precedent constraining such power
The decision – justified by conservatives through the unitary executive theory, which holds that the president should have sole total control over government’s executive branch – opens the door to what critics decry as an “imperial presidency”, and a scenario where the presidency can get rid of agency heads deemed to be disloyal
Ripple effects
“What the court has done with executive power has been really significant in terms of undercutting the administrative state by giving the president much greater power over that state,” said Daniel Epps, a law professor at Washington University in St Louis, Missouri, who suggested the court was likely to grant Trump even more power in future
“I think it’s a big deal. Justice [Neal] Gorsuch, in the Slaughter case has written a separate opinion where he basically says the job’s not finished [and] the court needs to do a bunch of other things to rein in the administrative state.”
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Equally far-reaching has been the court’s weakening of the 1965 Voting Rights Act, giving the southern legislatures the right to redraw congressional districts previously drawn up to ensure racial minority representation. The move will probably benefit Republicans
In two Trump-friendly rulings issued on the same day as the birthright citizenship verdict, the court effectively dismissed the rights of transgender girls and women to participate in female sports, and lifted election campaign finance restrictions in a move also probably beneficial to the Republican party – $125m in the black, in contrast to the Democrats, who are in debt – in the forthcoming congressional midterm elections
The court also gave Trump’s immigration crackdown a huge boost by greenlighting the administration’s move to strip temporary protective status from people from Haiti and Syria
A succession of largely unexplained rulings on the court’s “shadow docket”, staying or granting relief from decisions issued by lower courts, further demonstrates how the court’s conservative majority has indulged Trump
A packed court
Kim Lane Scheppele, an expert in international affairs and comparative law at Princeton University, predicted that weakening the Voting Rights Act – a key plank in the civil rights-era campaign for racial equality – would trigger “a huge set of ripple effects”, including drastically reducing the number of Black representatives in Congress
It was a result, Scheppele said, of a court “packed” in a manner she compared to Russia and Hungary, whose constitutional courts had been filled with judges supportive of Vladimir Putin, the Russian president, and Viktor Orbán, the former Hungarian prime minister
“Packed courts, because they need to pretend to still be courts, don’t always vote in favor of the autocrat who packed them,” she said. “They rule against the aspirational autocrats when the aspirational autocrats want to change their mind, or when they have another way of doing the same thing, so that when the court rules against them, it doesn’t really matter
“Occasionally the court will rule against them in a matter of huge public interest, where it would just be obvious that the court was packed. That’s kind of the birthright citizenship case. A five-four vote against on something we thought was so rock solid you couldn’t imagine anything changing is not really a loss, and it invites Trump to come back with the next proposal.”
President’s next targets
Trump’s next targets may include Congress and civil servants – boosted by the knowledge that at least some of the court’s six conservatives are prepared to contemplate the previously unthinkable
“A lot of legal arguments that we thought were off the wall are now on the wall,” said Scheppele. “So what’s coming next term are things like, is the civil service law constitutional? Does the power of the president over the executive branch mean that you can’t have a professional civil service that’s out of the reach of presidential firing?”
Also up for grabs may be the power of Congress to counteract and restrain an unbridled, bulldozing president – a question likely to sharpen rapidly if the Democrats retake control of at least the House of Representatives in November’s midterm elections
Future rulings could see the court assert the president’s power to ignore congressionally mandated spending or rules on the partisan makeup of government
Such a scenario could propel the US into uncharted waters, with a president who has already benefited from minimal interference from a Republican-controlled Congress reluctant to rein him in – unencumbered by even notional guardrails and enjoying powers resembling those of a powerful monarch
“We [already] have a Congress that is inert, a president who has no regard for the law or the constitution, and a court whose vision of the presidency is akin to that of a monarch, but stronger,” said Tribe. “Even King George III had a parliament to worry about, but King Trump, as the supreme court would have it, really needn’t worry about much at all.”
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