The Supreme Court Undermines a Founding Principle: The Presidency Isn’t a Throne
When it ruled last year in Trump v. United States that a president had absolute immunity for actions taken within their core constitutional responsibilities and presumptive immunity for all other “official acts,” the Supreme Court set the stage for the second Trump presidency.
Chief Justice John Roberts’ opinion in the case clashed with a foundational principle: no one is above the law. It also clashed with another foundational principle: ensuring that there was never a king again. Until now, 249 years later, the Founders had succeeded.
The Court’s decision opened the door to the irresponsible, unaccountable and autocratic ways that Trump has governed the country since January 20. It paved the way to Trump acting as if he was the successor to King George III.
However, the Supreme Court’s presidential immunity decision was only the beginning of its complicity in Trump’s quest to control the three branches of our government – in essence to become a King-like ruler. And the Republican-controlled Congress did its part quickly yielding its Article I powers to Trump.
In 2019, Trump asserted, “And then I have an Article 2, where I have the right to do whatever I want as President.”
In the first year of his second term, Trump has governed in precisely this way. He has run roughshod over Congress, the Constitution and the rule of law. He has also attempted to make the lower federal courts follow the example of the Supreme Court and bow to him.
On that last front, he succeeded only with the Supreme Court.
Lower court federal judges, including those appointed by both Republican and Democratic presidents, including by Trump, have repeatedly challenged the administration’s actions. Trump’s traditional harassment, intimidation and bullying tactics haven’t worked with these judges.
An extraordinary 541 lawsuits have been brought this year challenging actions by Trump and his administration, according to Just Security. In more than 100 of these cases, lower federal courts have issued preliminary injunctions or temporary restraining orders blocking Trump administration’s actions, according to the New York Times.
When cases have reached the Supreme Court on the Emergency Docket, however, it’s a different story. (The Emergency Docket consists of appeals to the Supreme Court seeking immediate relief, including staying injunctions against Trump administration actions while the cases continue.)
The Supreme Court has issued 27 orders in these Emergency Docket cases. The Trump administration has won most of these orders, staying injunctions issued by lower courts against the administration. Often there is no explanation given by the Supreme Court for its decision. These wins allow the administration’s policies to continue while the cases work their way through the courts, which can take years. Meanwhile, the damage done by the policies can easily become permanent before any final decision is reached.
This week the Supreme Court heard oral argument in the case of Trump v. Slaughter. The decision in this case is likely to empower Trump even more.
Chief Justice Roberts has, for decades, believed in the “unitary executive” theory, which says that the President has authority over the entire executive branch. This view is expected to prevail in the Slaughter case, with the Court overturning a longstanding precedent to find that the President has unconstrained power to fire anyone in the executive branch, including members of independent agencies. (The Court is expected to carve out an exception for Federal Reserve officials).
If the Court makes that decision, it will give President Trump vast new powers.
We know from experience that he will use the power to fire anyone he wants, demand loyalty to him and require cooperation for whatever he wants done.
Chief Justice Roberts and his Republican-appointed majority on the Court refuse to recognize that Trump’s goal is not merely a “unitary executive.” Trump apparently wants a “unitary Constitution” in which he controls all three branches of government.
While the Court in two pending cases may well reject Trump’s attack on the Constitution’s unequivocal requirement of birthright citizenship and strike down Trump’s legally flawed tariffs, that is not going to resolve the problem of the Court ceding powers to Trump.
The Roberts six have been empowering Trump with no apparent recognition that they are seriously endangering the foundational principles on which this country was established.
They should go back and relearn the history of our founding. Each of these six Justices would benefit from writing Ben Franklin’s historic answer to the question of what the founders had created –“A Republic, if you can keep it” – one hundred times on the blackboard.
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Fred’s Weekly Note appears on Thursdays in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s newsletter, and other recent editions, here. And subscribe for free here and receive your copy each week via email.
