Marjorie Cohn previews some of the cases the U.S. high court will use to establish the limits of executive power.
Lady Justice statue outside the U.S. Supreme Court in Washington, D.C.
(Michael Galkovsky, Flickr, CC BY-NC-ND 2.0)
The Supreme Court’s new term, which began last week, presents the court with a monumental opportunity to hand Donald Trump unbridled executive authority and eviscerate the separation of powers enshrined in the Constitution.
The court appears poised to rubber stamp many of Trump’s worst abuses, from the imposition of massive tariffs to seizing control of federal agencies created by Congress.
Although there are 39 cases on the court’s regular docket, it has already handled nearly 30 cases with temporary unsigned orders on its “emergency docket.” In those cases, the high court granted Trump’s requests to block orders from lower courts 20 times and ruled against his administration in only three cases; the others led to mixed rulings.
Even though the cases in which the high court has already opined are not final decisions on the merits, they provide a preview of what we can expect during this term after full briefing and oral arguments.
“It’s hard to imagine bigger tests of presidential power than these potentially once-in-a-century separation-of-powers battles,” Deepak Gupta, a lawyer who frequently appears before the court, told The New York Times. “And we’re seeing more than one of them at once.”
Here are some of the cases the court will use to establish the limits of executive power.
Trump with Reciprocal Tariff Chart in April. (Daniel Torok, White House Photo)
Imposition of Massive Tariffs
In early November, the court will consider the legality of Trump’s wide-ranging tariffs on goods bought from other countries in two cases, Trump v. V.O.S. Selections and Learning Resources, Inc. v. Trump. The U.S. Court of Appeals held that Trump does not have the authority to unilaterally impose sweeping tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA).
Congress has the power to impose tariffs and taxes, and raise revenues under the Constitution. For most of U.S. history, tariffs provided the main source of financing for the federal government. In 1913, the 16th amendment was enacted to authorize “taxes on incomes.”
The IEEPA gives the president authority to deal with “any unusual or extraordinary threat” to U.S. national security, the economy, or foreign policy. The act doesn’t mention tariffs, taxes or duties but says the president can “regulate” the “importation” of “property in which any foreign country or a national thereof has any interest.” Trump maintains that “regulate” implicitly includes the imposition of tariffs.
Trump’s lawyers argue that he didn’t impose tariffs to raise revenue but rather to “rectify America’s country-killing trade deficits and to stem the flood of fentanyl and other lethal drugs across our borders.”
In holding that Trump lacked the power to impose the tariffs, the Court of Appeals used the “major questions” doctrine, which requires that Congress provide clear guidance before a federal agency can proceed on a major question of political or economic significance.
The Supreme Court used the major questions doctrine to strike down vaccine, environmental, and student loan relief policies of the Biden administration.
These cases raise the issues of whether Congress delegated its tariff power to the president in the IEEPA and whether the president can increase taxes on the American people without a new act of Congress.
Firing Members of Agencies Created by Congress
The Supreme Court will also take up the issue of Trump’s authority to fire members of independent agencies in December. Trump v. Slaughter involves Trump’s removal of Rebecca Slaughter, a Democratic appointee to the Federal Trade Commission (FTC).
Congress prohibited the firing of FTC members unless they demonstrate “inefficiency, neglect of duty, or malfeasance in office.” When the high court agreed to hear the case, it stayed a lower court decision ordering the Trump administration to reinstate Slaughter.
In this case, the high court will likely overrule its 1935 case of Humphrey’s Executor v. United States, in which it upheld a law that forbade the president from firing commissioners on the Federal Trade Commission absent a showing of good cause. The court ruled that Congress can limit the president’s authority to remove members of the FTC and other agencies that perform “quasi-legislative or quasi-judicial” functions.
On its emergency docket, the high court in Slaughter and two other cases temporarily blocked federal district court rulings that had prevented Trump from firing agency heads — of the FTC, the National Labor Relations Board, the Merit Systems Protection Board, the Consumer Product Safety Commission, and the Federal Trade Commission.
Trump’s argument that he should be able to remove agency heads for any reason is grounded in the “unitary executive” theory. Adherents to that theory believe that Article II of the Constitution establishes a
“hierarchical, unified executive department under the direct control of the President [who] alone possesses all of the executive power and … therefore can direct, control, and supervise inferior officers or agencies who seek to exercise discretionary executive power.”
In the 1988 case of Morrison v. Olson, the Supreme Court upheld a provision of the 1978 Ethics in Government Act, which was enacted in the wake of Watergate. It said that a special prosecutor could be removed by the president only for good cause.
This ruling was an implicit rejection of the unitary executive theory. Antonin Scalia maintained in dissent that the Constitution’s Article II Vesting Clause (which says, “The executive power shall be vested in a President of the United States”) “does not mean some of the executive power, but all of the executive power.”
A majority of the members of the Supreme Court now subscribes to the unitary executive theory, which was once a marginal notion. In Trump v. Mazars, John Roberts wrote for the court that the president is “the only person who alone composes a branch of government,” an opinion he reiterated in Trump v. United States.
If the high court grants the president removal power over independent agencies, those agencies will no longer remain independent. The bodies that regulate our health, safety, labor, environment, and consumer products will be subject to political manipulation by the president.
Removing a Governor of the Federal Reserve Board
President Trump with Fed Chair Jerome Powell in July. (Daniel Torok, White House Photo)
In January, the court will review Trump’s attempt to remove Lisa Cook, a member of the Federal Reserve Board of Governors who is serving a 14-year term. He tried to fire Cook for alleged mortgage fraud before she joined the board.
Under U.S. law, a Fed Board member who has been appointed by the president and confirmed by the Senate can be removed only “for cause,” a term the law leaves undefined. Trump asserts that his allegations against Cook constitute sufficient cause.
A U.S. district court temporarily blocked Cook’s dismissal while her lawsuit makes its way through the courts. In Trump v. Cook, the Supreme Court delayed rendering a decision and scheduled the case for oral argument.
In this case, the court could decide whether Trump had cause for firing Cook and/or whether Congress has the authority to limit the removal of Federal Reserve Board governors.
Unlike other cases in which the Supreme Court allowed Trump’s firings of agency heads to occur even as the legal challenges proceed, the court allowed Cook to stay on the Fed Board pending the decision in her case. That may mean that the court will distinguish the Federal Reserve Board from other federal agencies, particularly in light of Trump’s repeated threats aimed at Fed Chair Jerome Powell.
Ending Birthright Citizenship
Although not yet on its calendar, the high court will likely review Trump’s January executive order purporting to end birthright citizenship.
Section 1 of the 14th Amendment to the U.S. Constitution says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
In the 1898 landmark decision of United States v. Wong Kim Ark, the Supreme Court held that the 14th Amendment guarantees citizenship to virtually all individuals born in the U.S. with exceptions for children of foreign diplomats or enemy occupiers. Although the cases also excepted children in Indigenous tribes, Congress granted them citizenship in the 1924 Indian Citizenship Act.
Protesting deportation on International Human Rights Day, Minneapolis, 2017. (Fibonacci Blue, Creative Commons Attribution 2.0)
Trump’s executive order says that only children whose parents are U.S. citizens or permanent residents are U.S. citizens.
Lawsuits were filed in the states of Washington, Maryland and Massachusetts. In all three cases, federal district judges granted injunctions and blocked the operation of Trump’s order nationwide while the legal issue worked its way through the courts. The 1st, 4th, and 9th Circuit Courts of Appeals denied the Trump administration’s requests to stay the injunctions.
On Sept. 26, the Trump administration asked the Supreme Court to review the cases from the 1st and 9th Circuits that found Trump’s order on birthright citizenship to be unconstitutional. The high court will likely grant review of these cases.
Trump Fashioned a Court to Do His Bidding
Trump nominating Judge Amy Coney to Supreme Court, September 2020 (Andrea Hanks, White House)
By packing the court with three radical right-wingers during his first term, Trump fashioned a reactionary supermajority to do his bidding. Indeed, last year, in Trump v. United States the court held 6-3 that presidents have absolute immunity from criminal prosecution for core official acts, and presumptive immunity for all other official acts, while admitting that it is difficult to distinguish official from unofficial acts.
The Supreme Court may decide to review other cases, including Trump’s authority to deploy federal forces to U.S. cities, deport Venezuelans under the Alien Enemy Act of 1798, and refuse to spend funds appropriated by Congress.
As it did when cases testing Trump’s power came before it on the emergency docket, the high court will likely affirm most of his actions, underscoring the immunity it granted him last term, and ratifying his authoritarian program.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is a member of the bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
This article was first published by Truthout.
The views expressed in this article may or may not reflect those of Consortium News.
IT seems, obvious, that with those Hard-Right Judges in the Supreme Court, unless some huge earthquake arises, it’s a Done Deal. Trump will get his wishes and demands.
If that happens, then say Goodbye to Democracy in the US.
Goodbye…
You think so… ?
a strange idea just crept into what’s left of my head,
with all the dizzying decisions and executive orders
coming from the white [supremacy] house:
it looks as though very soon #47 will have unlimited power.
come election time, he will declare
(1) a nationwide state of emergency,
(2) elections unnecessary,
(3) himself the undisputed – “and most beautiful!” – ruler
of the untied states of america [including by then, maybe
greenland, panama, venezuela … and a number of other
resource-rich countries around the globe].
Pretty much. I believe there will be a major 9-11 type of event, but worse, such as a dirty bomb explosion in a (Democratic – natch) American city which he will use for this purpose. Then declare a national state of emergency, suspend the constitution for the “duration” and impose martial law. Elections will be a thing of the past.
“My eyes could clearly see the Statue of Liberty sailing away to sea…” –Paul Simon, American Tune.*
*Listen to the whole song ?
US under Romney ? tactically
Mitt’s father , born in Mexico…was on GOP ticket for VP.
No-no…
There are three branches of American government: legislative, judicial, and executive. All federal executive agencies are naturally part of the executive branch of government and under the president’s jurisdiction. The oddity had been the concept of “independent” agencies, not the so-called unitary executive concept, which is only common sense.
Put differently, does the author really want these unelected bodies to be making and executing policy independently of the elected president’s control? Talk about a Deep State!
Some agencies’ work should be above politics, notably the Department of Justice.
Indeed … but, as we have seen from both D and R administrations, nothing is above politics, including the supposedly independent Dept of Justice and the Federal Reserve. So the question remains: would one rather these very powerful agencies actually be beholden to an elected person, however problematically, or would one rather they act “independently” and we trust them to do so for the common good?
The white, male , straight , landed , Christian founders of the U.S. state intended that the Congress answer to them.
Any question…
The Constitution – Preponderance Ponderance
——
Is an interpretaion of a law the law ?
Giving unbridled power to someone above the law , is exactly what ?
Unbridled power handed away only to be part of court itself .?
Ask and you shall recieve for what is ours is yours ? By steps.
Together we have over throne of thee ?
Which one or ones are above the law ?
What does Congress do , again ?
When we , will we know ?
Under the ocean , unfound in broken pieces, yet carved in tablet stone ?
Hidden shadow on a cave wall during day , carved in darkness , chased away by the light of day ?
Your reasoning seems quite flawed to me. Under our constitutional rule of law Congress has the power of the purse, the power to declare war and the power to make laws. If there are existing laws covering a topic there is no provision for the President to make his/her own law through executive order that contradicts existing law. Also if the congress decides to spend money to effectuate an agency’s mission that is their power and not the president’s. The main role of the executive branch is to enforce the laws made by the Congressional representatives of the people. The agencies created and their powers have to be approved and funded by Congress.
There is also no provision in the US constitution for the executive branch to establish an international secret police which can murder, orchestrate coupes or invade the private correspondence of citizens without a warrant etc. So let’s get rid of the CIA and NSA once and for all for both war-parties. The real question behind this is whether the president is a king above all the laws of the land ? Can a president murder anyone construed as an enemy? Do you advocate that? Can a president silence dissent in private institutions or by private citizens. Do you really advocate that? Can a president ignore due process for those subjected to constitutionally established law enforcement actions?I oppose such abuses of power by any party or politician. Domestic law enforcement is delegated to the states in the Constitution, but Trump wants to override that limit on executive power and invade cities and states at will. No, no, no the constitution is not a formula for dictatorship or an international empire with military bases around the world. That was the model of the Roman and British empire and the US revolution was an attempt to break away from an empire and establish a new model of limited self rule. Why are you so hungry for tyranny?
None of the fine examples of overreach and tyranny you mentioned is the subject of this essay, unfortunately. This essay was about the president having or not having the executive power to hire/fire people in the executive branch of govt.
It’s important to remain clear minded and lucid in the current situation. The current president is attempting certain changes in the typical manner presidents operate. Some of these may be constitutional, others not. But just because the current president is doing them does not make the acts necessarily unconstitutional.
I forgot in my other comment to add what was actually my first thought looking at the aforementioned executive order regarding birthright citizenship, re: this section:
“Sec. 4. Definitions. As used in this order:
(a) “Mother” means the immediate female biological progenitor.
(b) “Father” means the immediate male biological progenitor.”
Amusing as it is the Trump administration would provide a dictionary section in its executive order to define “mother” and “father,” I am unsure their provided definitions suffice in the age of IVF and surrogacy (where sperm, egg, and womb can now all be from separate individual). Can not these differ from the legal definitions of father and mother on a birth certificate?
A “biological progenitor” is not necessarily a parent, nor immediate. If a man has fertility problems and a sperm donor is used, and perhaps his wife has issue too and any non-standard situation applies—i.e., a surrogate mother is used and she provides the egg; or she uses a donor egg; or she provides neither egg nor womb—can not any person in this process, because of the given definitions, potentially complicate citizenship? I count three possible “biological progenitors,” neither of which are necessarily the American parents!
So what happens if a “biological progenitor” is not adequately American (according to this) and any of the sperm, egg, or womb donor in a surrogacy does not meet their requirements? Shall ICE check each of these to see if a citizenship is illegitimate?
“Trump’s executive order says that only children whose parents are U.S. citizens or permanent residents are U.S. citizens.”
Though I am no lawyer, I took a look at the linked order and was surprised it does not appear to say this, and further surprised a lawyer would not thus further clarify it. I wonder if I am missing something, perhaps from the linked but very lengthy U.S. v. Wong Kim Ark case; or if I am overcomplicating it; or if the author has oversimplified it.
I quote from the Executive Order:
“But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” […]
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
Well first, it is an exclusionary statement of two groups that it claims are not citizens; the author states it to be asserting only certain groups are citizens, whereas it is saying certain groups are not citizens. I do not know if that is legally unimportant, but to me it seems significant at least as a matter of fact. If this is an A = B .’. B = A situation, it would have been nice to clarify; as I am not an American nor a lawyer nor an American lawyer, I do not know if those two separate statements are the same.
More importantly, it is excluding these groups from citizenship by way of arguing that they are not subject to the legal jurisdiction of the United States. Yet if these people within the US are not subject to its jurisdiction, to whose are they subject? Is this not an obviously ridiculous argument for them to make, or has this any chance to succeed?
Importantly, it is fortunate—should it go through—it looks this will at least not revoke any present citizenships, if I understand correctly: “(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.”
George Romney comes to mind.
The only reason the Republican majority in the court would be doing this, even as we all struggle under the insane recklessness DT has demonstrated with the powers and immunities granted him by previous SC rulings, is because the court members are themselves part of a conspiracy to dismantle American democracy. They can’t possible be fine with the idea of a Democratic president wielding the same powers, so they either anticipate that eventuality would be foreclosed upon by a perpetual Republican majority, or that they (or their rightwing sucessors on the court) will contradict their own (shadow) rulings and deny the Democrat the very powers they fell over themselves to grant DT
That is the question, isn’t it: why would the 6 ‘conservative’ court members act in so obvious violation of black letter law. Since there are six individuals with different histories and extended personal and political relationships it may be too simplistic to assign a single reason, but it seems there are two broad assertions that can be made: either members of the six have truly held political/ideological beliefs that support an anti-democracy authoritarian agenda…or some members are compromised by personal wealth and power interests and are not concerned with the longer term consequences for the nation and its people.
It is anti-democratic to hold that executive branch offices should be answerable to the executive elected by the people?
Am I to understand that you are at a minimum comfortable with the actions of this administration…or even generally approve? The history of our democratic republic is the tension between the aspirations of power by authoritarian interests and the underlying formative legal structure that attempts to deny any one power center dominating control. The patterns of authority that you seem to be proposing as democratic, that is, that the executive should have unquestioned control of the various executive agencies— the actionable parts of government— is fundamentally undemocratic in that in such a design an executive so inclined, regardless of having been elected by a majority, could fully ignore the will of the people and the systems of law.
What other commenters seem to be missing is the difference between “democratic” and “safe” …
Limited government was the whole point of the American system … the federal government was supposed to do a few things. But successive admins over the past 200 years have led to this behemoth that you are all afraid of now. Is that the fault of the current president or is it far too much power for any person?
Duh…
I think that someone needs to be a bonafide altruistic, benevolent, compassionate, and charitable person to have such authority.