Since President Donald Trump returned to office, his broad assertions of executive power have led to several legal challenges, many of which could eventually make their way to the U.S. Supreme Court. Legal experts are divided on how much, if any, restraint the justices will place on his authority.
Since January 20, Trump’s approach to presidential power has been described by many as more aggressive than that of previous administrations. His actions, which include restricting birthright citizenship, withholding congressionally appropriated funds, and removing leaders of independent federal agencies, have raised concerns among legal scholars.
Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, summed up the situation, saying, “The unifying theme is an extreme view of presidential power unlike anything we have seen before.”
Trump’s recent Supreme Court victories, including three major rulings last year, have fueled concerns. With three of the court’s six conservative justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—appointed by Trump himself, some worry that the court will side with the president’s bold claims of authority.
Harvard Law Professor Mark Tushnet noted, “The Trump administration is gambling that the court won’t act as a strong check, and it has decent odds.”
Several lawsuits have been filed against Trump’s policies, including his immigration reforms, efforts to restrict transgender rights, and moves that affect federal workers. The Supreme Court could eventually be called upon to address these cases as appeals move through lower courts.
Critics argue that Trump’s actions violate the U.S. Constitution, particularly in terms of encroaching on Congress’s authority. Despite limited resistance from Republicans in Congress, experts like University of Illinois professor Steve Schwinn believe Trump’s actions may be unconstitutional. He pointed to Trump’s attempts to shut down government agencies and freeze federal spending, saying these actions overstep presidential powers.
In some cases, federal judges have already blocked Trump’s directives. For example, a court halted Trump’s attempt to freeze funding for federal grants, loans, and other assistance, even after the White House rescinded the freeze.
Robert Tsai, a professor at Boston University, believes that Trump would likely lose in a Supreme Court case regarding the funding freeze. He emphasized that the Constitution’s separation of powers between the executive and legislative branches would likely favor those challenging Trump’s actions.
Birthright Citizenship
One of the most significant challenges to Trump’s authority involves his attempt to narrow birthright citizenship. The president directed agencies to deny citizenship to children born in the U.S. to parents who are not American citizens or lawful permanent residents. Critics, including Democratic-led states, argue that this violates the 14th Amendment’s guarantee of citizenship to anyone born on U.S. soil.
Legal scholars generally agree that the Supreme Court would likely rule against Trump on this issue. John Yoo, a former Justice Department lawyer under President George W. Bush, stated that Trump’s actions contradict the original understanding of the 14th Amendment. “The original understanding of the 14th Amendment… requires that everyone born in the U.S. becomes a citizen,” he said.
However, some conservative scholars predict that a majority of the justices could narrow or even reconsider the landmark 1898 ruling in United States v. Wong Kim Ark, which guaranteed birthright citizenship to children of non-citizens born in the U.S. Trump’s Justice Department has argued that the ruling applied only to children whose parents had “permanent domicile” in the U.S.
Cornell Law Professor Gautam Hans expressed uncertainty, saying, “I hope the Supreme Court will stop this executive order, but I can’t be sure given the court’s current makeup.” He warned that Trump’s early actions could represent “the greatest threat to American democracy since the Civil War.”
A Conservative Court
Recent rulings by the Supreme Court have pleased conservatives, such as the 2022 decisions to roll back abortion rights and expand gun rights. Trump’s most consequential victory came when the court ruled in favor of granting him immunity from prosecution in the case of his attempts to overturn the 2020 election results.
Despite this, to win a case at the Supreme Court, Trump would need a majority of the nine justices, which includes three liberal members. A ruling against Trump would require at least two conservative justices to side with the liberals.
Some lower court judges have expressed alarm at Trump’s disregard for the rule of law. In one case, Seattle District Judge John Coughenour criticized the president, stating that Trump “sees the rule of law as an impediment to his goals” and often ignores it for political reasons.
Trump’s administration has already filed an appeal to challenge Coughenour’s ruling on birthright citizenship.
A 1935 Precedent
In some instances, Trump could prevail in his challenges to executive orders. For example, a lawsuit has been filed by a former National Labor Relations Board member, arguing that Trump violated federal law when he fired her. This case could prompt the Supreme Court to reassess the precedent set in Humphrey’s Executor v. United States (1935), which limited the president’s power to remove certain federal agency heads.
Some justices have suggested they may be willing to revisit or overturn this ruling, potentially in Trump’s favor.
Legal experts like John Yoo argue that Trump’s efforts to roll back diversity and inclusion programs in federal agencies are likely to withstand challenges. Yoo stated, “If past presidents could establish such programs, then the current president can remove them.”
Trump’s early actions demonstrate a broad view of executive power, drawing from historical precedents during times of crisis. For example, his declaration of a national emergency at the U.S.-Mexico border was framed as an emergency, though critics question whether such a crisis exists.
Yoo noted, “During crises, presidential power expands. This was the very purpose that the Framers had in mind when they created a single chief executive.”
In conclusion, while Trump’s approach to executive power has provoked legal challenges, it is unclear how the Supreme Court will ultimately respond. The court’s current conservative majority could either support or curb Trump’s expansive view of presidential authority, with potentially far-reaching consequences for U.S. governance.
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