When you’re a star, the Supreme Court lets you do it

SCOTUS is enabling Trump's assault on American institutions

"When you’re a star, they let you do it. You can do anything." - Donald J. Trump

Meme courtesy of Professor Anthony Michael Kreis

Renewed scrutiny of Trump’s ties to Jeffrey Epstein reminds us of just how Trump’s strategy with women — assaulting them without permission, on the assumption that legal accountability was unlikely — mirrors his strategy for governing. Grab ‘em by the institutions.

And Trump has been mostly proven right, because the Supreme Court seems to be willing to let him do anything, to exempt him from the laws that prior Presidents had to follow.

A couple of months ago, the major concern was what would happen when Trump defied the courts. A more complicated picture is now emerging. One that mixes quiet but unmistakable defiance of court decisions by the Trump administration with encouragement from the six Republican-appointed Justices who sit atop the judicial branch. This is an arguably worse scenario, since it provides a veneer of legalism even as it replaces the rule of law with rule by law, where Trump is allowed to determine the nature of that law.

The emerging pattern is that the Trump administration is checked by the lower courts, slow-walks compliance, and sometimes asks SCOTUS for help, which they usually provide via poorly reasoned opinions or no opinions at all. The Supreme Court often does not feel the need to explain what are effectively constitutional amendments that rebalance the separation of powers, feeding perceptions of the court as a partisan actor.

Consider the following:

• The Trump administration has defied or frustrated the court in more than one third of the 165 cases where the courts have ruled against Trump.

• Since April, the Supreme Court has granted relief to Trump in all 15 of the emergency applications filed by the President. In only three decisions has the majority written a decision to explain its reasoning.

Why does this matter?

The combination of Trump defiance and SCOTUS enabling has allowed him to move ahead with some extraordinarily damaging actions, which will be impossible to quickly or fully unwind. This includes substantially reorganizing much of government, eliminating parts of government like the Department of Education and specific government programs created by Congress, as well as ending the merit system at the heart of the civil service.

A super-powered executive takes core powers from Congress

Historically, we understood that Congress had the power to create agencies and define how money could be spent. Increasingly, the Supreme Court seems to be saying the President can countermand such powers at his discretion. We understood that Presidents could not fire the heads of agencies that Congress designed to be independent; now, apparently, he can. Such de facto restructuring of the constitution weakens Congress as the first branch of government.

We do not have to look at the future to for the implications. They are playing out today. Trump’s budget chief Russ Vought has been refusing to spend an estimated $400 billion in appropriated funds. How much faith can any legislator place in budget agreements when the White House can rewrite them at will? How useful are Congressional appropriations when they can be cancelled by the President?

Vought has said: “The appropriations process has to be less bipartisan” telling Republican Senators to stop trying to find common ground with Democrats. Under the new model, a combination of continuing resolution and reconciliation bills provide broad frameworks, but then Trump gets to decide the final budget. He is even free to renege on promises made to his own party members, as Senator Lisa Murkowski discovered when commitments to secure her vote for the reconciliation bill were tossed aside.

Vought has violated both the law and long-standing precedent by refusing to provide a detailed budget to Congress because “it wasn’t in our interest.” The White House is also refusing to co-operate with Government Accountability Office investigations of its impoundment. This fits with a broader pattern of the administration hiding its spending (or lack of spending), in order to maximize control. Vought is also refusing to present apportionment (the timing of spending) information in a public database, again violating a law, this one passed by Congress in response to Trump’s first term.

My colleague Sam Bagenstos, former General Counsel for the Office of Management and Budget, wrote: “Apportionments aren’t mere technicalities — history has shown that hiding them creates the perfect conditions for shakedowns and corruption.” A District Court judge confirmed that Vought was breaking the law and that doing so fueled the ability of the administration to engage in other illegal actions: to impound funds and evade judicial oversight for doing so. “Defendants are therefore required to stop violating the law!” beseeched the Judge. Will they?

SCOTUS is weakening other parts of the judiciary

The Supreme Court’s decision to block nationwide injunctions by lower courts can be debated on its merits. Conservatives will say a single judge should not be able to frustrate the ability of the President to govern. If the Supreme Court had blocked lower court injunctions and aggressively acted to constrain Trump’s excesses, this would be a more compelling argument. But the inescapable reality is that Trump is evading lower court rulings, and SCOTUS acceded to his request to minimize the power of these courts. The effect is to limit the ability of any courts to block Trump’s actions.

SCOTUS is also overturning lower court decisions. Adam Bonica provides a striking visualization of this pattern.

Judges are normally not prone to hyperbole, but lets look at how some have responded to Trump’s assault on the law.

Now imagine how those judges feel when the Supreme Court waves away their efforts to stop blatant violations of the law. In cases where lower courts have issued detailed rulings to justify their injunctions, SCOTUS has frequently overturned them with no explanation as to why. Why should lower court judges risk death threats if the Supreme Court won’t even do them the courtesy of considering their opinions?

SOCTUS inconsistency undermines faith in the rule of law

When President Biden sought to claim executive authority to forgive student loans, SCOTUS applied a new doctrine to frustrate him, saying that his action constituted a “major question” of policy that executive power. They stepped in to act before a dollar could be forgiven, delaying any action for months to first resolve issues of standing.

By contrast, when Trump decides to eliminate the Department of Education, SCOTUS allows him to move ahead, and has nothing to say. This is not a one-off. Adam Bonica again illustrates the inconsistency in how SCOTUS is stepping in to reverse lower court rulings against Trump in a way it failed to do for his predecessor:

This feeds the perception that with the current SCOTUS, Democratic Presidents can expect their actions to be blocked by one theory of executive authority (major questions), while Republican Presidents are enabled by another (unitary executive). We appear to have a presidential version of Wilhoit’s Law:

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

SCOTUS undermines the capacity of other institutions to resist an authoritarian regime

In responding to the Department of Education decision, the administrative law scholar Noah Rosenblum posted:

The key point is that formalism is dead. It used to be that if you went through bicameralism and presentment, you had a law, and that meant enforceability regardless of party control. If you ignored it, it was a scandal, and you needed a theory. Tell that to the TikTok ban. This raises an interesting question for law professors and political scientists: what is a law now? How do we distinguish *real* laws from “laws.”

The credibility of the written law and precedent matters broadly to the willingness of non-governmental actors to rely on legal means to oppose Trump’s authoritarian actions. In a scenario where you know the law is on your side and the courts will predictably defend you, you take your case to court. In a scenario where you think the law says one thing, but the government is likely to engage in falsehoods in court, and the Supreme Court will pretend to believe them, maybe it’s best to surrender to a vindictive man with extraordinary powers.

SCOTUS is on board with a radical version of unitary executive theory

Resistance to an authoritarian regime requires collective action and a judiciary willing to protect the rule of law. By empowering Trump above all branches, SCOTUS has weakened the environment for such resistance. And the Roberts court literally has argued that Trump, as President, “alone composes a branch of government.”

It would be a mistake to treat unitary executive theory as a coherent legal framework. It is an effort by Republicans to empower Republican Presidents, now being implemented by a Chief Justice who has long held such views. Here is how Trump understands it: “I have an Article II, where I have the right to do whatever I want as president.”

The immunity decision last year, where Trump requested the conservative supermajority to give him extraordinary protections from accountability, showed that SCOTUS were ready to go in the direction of unitary executive theory if Trump asked them to. (As a reminder, this was the decision when the Roberts court sided with Trump in Trump v. the USA). While the immunity decision protected Trump from harms, the Court is now enabling him to commit harms.

The fact that Trump personifies all of the darkest risks that come from centralized power does not seem to discourage the Roberts court from embracing unitary executive theory. The law Professor Sherrilyn Ifill explains why:

We must with clear eyes confront the only reasonable explanation for the actions of the conservatives on the Supreme Court over the past two years. The conservative majority on this SCOTUS is fully aligned with President Trump’s vision of his Executive power. Not because they are “up to something,” or because of “moneyed interests.” But because the conservatives on this Court have come to genuinely embrace the MAGA vision of Trump’s presidential power. They are aligned with his claim to unfettered executive power, and they do not intend to restrain him.

An empowered Trump means a more politicized and unstable government

The Trump/Roberts vision of executive power has weakened other branches, and non-governmental actors. It is justified by the claim that it provides for a more responsive government. But look at how the Trump administration is functioning and we instead see the opposite. The new equilibrium will have negative effects on governance both in the short and long-run, fueling reckless instability and politicization.

For example, Trump has been firing civil servants in violation of the law simply because he wants to exercise retribution. For example, Department of Justice lawyers who were involved in investigations of Trump have been fired. An IRS lawyer who said it was illegal to hand over tax data to ICE was recently forced out of his job.

Civil service expert Don Kettl describes himself as a “raging moderate” and is not prone to hyperbole. Nonetheless, he argues that the moment Trump lawyers claimed that they can fire career civil servants for any reason. represents “the day the cherished merit system for federal employees died.”

It is easy to imagine how this reasoning will fuel illegal abuses of power inside of government. The ability of career officials to take a principled stand to defend the law will now cost them their job, because the Supreme Court is not stopping Trump from illegally firing them.

The Department of Education case (or rather two cases: Trump vs. AFGE and McMahon v. New York) has made the position of SCOTUS impossible to ignore. In both cases, the conservative supermajority refused to offer an opinion on the facts of the case, but overturned lower court decisions, thereby allowing Trump to pursue his plan to eliminate the Department.

In doing so, as Justice Ketanji Brown Jackson pointed out in the AFGE case, the Supreme Court allowed Trump to exercise a power he claims but does not have: to reorganize the government. Presidents can engage in reductions in force (RIFs) under limited circumstances. As Nick Bednar explains, courts generally defer to Presidents about RIFs, but Presidents have to follow specific criteria laid out in law. And Trump has sometimes failed to meet the leal procedural standards of RIFs because the scale of the changes are inconsistent with RIFs.

For example, the Trump administration is seeking to close Consumer Financial Protection Bureau. It placed employees on administrative leave and told them to do no work. It tried to fire all of them. The courts said that this violated the need for individualized assessment of employees required of RIFs. The Office of Management and Budget General Counsel told DOGE that no such assessment was needed (not that DOGE could have credibly performed such an assessment), but simply to tell the court that the assessment took place.

I am not a lawyer, merely a humble public administration professor. And it seems clear to me that Justice Jackson is right when she wrote: “while Presidents possess some discretion to reduce federal employment, they may not fundamentally restructure the Federal Government all on their own.” Trump’s massive downsizing, amounts to one of the most ambitious reorganizations of the federal government. Trump described it as a “critical transformation” of government in one Executive Order. If effectively eliminating some agencies and leaving others unable to perform core legal functions is not a reorganization, then nothing is a reorganization.

There is a widely understood and accepted (at least until recently) process for Presidents to win reorganization authority. They submit reorganization plans to Congress, which chooses to green light them or not. If Presidents inherently had reorganization powers, why did President Bush and Obama and even President Trump in his first term seek explicit legislative approval, and accepted the result when Congress rebuffed them?

Just last year, the Supreme Court was singing from a different hymnbook about the need for Congress to not delegate authority to the executive branch when it came to detailed regulations written by administrators. But apparently Congress, in contradiction of prior Court decisions, no longer needs to delegate to Presidents the powers to massively restructure federal agencies. He can simply grab that power if he wants.

The Trump administration could have chosen to explain that they were not, in fact, engaging in large scale reorganization. They did not, because they assumed, correctly, that the Supreme Court would bail them out without the need for explanation. Either prior legal determinations were wrong, or the Supreme Court is wrong now. If so, should they not at least make their case?

Cumulatively, both the damage being done, and the difficulty in undoing that damage speak to a need to limit the President in exerting unprecedented powers. This is what the lower courts determined after looking at the facts of the case. It is what anyone listening to Trump could have determined, since he and his allies have been explicit about closing entire agencies. But not the Supreme Court. After the AFGE case, it again overturned a lower court decision in McMahon v. New York. Again, they offered no explanation as to why the lower court, or the dissent from Sotomayor (joined by Jackson and Kagan) was in error.

With AFGE, the lower court determined that those suing the government were likely to succeed based on evidence. The Supreme Court declared that the government was likely to succeed while choosing not to review the evidence. The Trump administration’s claim that it would act legally was sufficient for the Supreme Court, even as Trump’s detailed plans, and pronouncements showed otherwise.

If Trump needs only to say that its actions are legal for SCOTUS to agree, why do we need courts at all? It’s like a guy who publicly promised to kill you, proclaiming “it’s ok, this is all legal” to a nearby cop as he stabs you. Or to extend the metaphor, the cop’s bosses telling him that the stabber is right, or at least must be allowed to proceed for now, and lets see where we end up.

What it means for education and democracy

Lets take a moment to consider the damage done to the Department of Education under Trump. Much of what Department of Education does is not to teach students, but to establish standards, complete research and analyze data at a national level. This is less than counterparts in other countries do, reflecting the generally decentralized nature of American education. If you believe that the United States remains a single country, a basic function is that we should have some guidance and direction about how our students are learning.

I reached out to Professor Dominique Baker, an expert on higher education at the University of Delaware. She explained that one fundamental purpose of the Department is to provide access to a basic quality of education. This does not mean equality of treatment: clearly there are large differences in funding and conditions across settings. But the Department of Education provided a backstop against overt discrimination, a backstop that will no longer exist. Baker said:

There have been times in our country's history where states and localities have done things like close down their entire school systems rather than allow Black children to attend. ED was created to force states to uphold their responsibilities to all students. That means they do a lot of things, such as ensuring that K-12 school districts are providing learning environments for students with disabilities, managing the distribution of student financial aid for undergraduate and graduate students, tracking the condition and quality of educational experiences at all levels of schooling, and funding the rigorous evaluation of education interventions so that schooling decisions could be evidence based.

These practical impacts are already being felt. Baker pointed out that $6.8 billion in funds to help vulnerable students have not been disbursed, and the Department is not producing key educational statistics required by law. This abandonment of core legal tasks assigned by Congress will worsen as the RIFs occur:

That doesn't even scratch the surface of what I'm worried about happening in the future. I have no confidence that federal financial aid disbursements will happen smoothly this upcoming academic year. Colleges and universities need to have plans in place for what happens if ED does not disburse the funds they are legally required to distribute. The law has not compelled ED to uphold its responsibilities so far.

Trump may want this vision of education for America. But he passed no legislation to make it so. Nevertheless, SCOTUS says he can move forward. And here, again, what might seem like a narrow administrative fight about RIFS and reorganization is actually a fight about who governs in America. It asks if we still have a functioning democracy. The answer is disconcerting and Baker puts it well:

By allowing the President to use an Executive Order to functionally dismantle the US Department of Education, there are essentially no checks and balances on the executive branch. Said another way, Congress and SCOTUS are allowing the President to disregard Article I of the US Constitution. Congress created the Department of Education. While key elements of the majority party in Congress may not like that, they do not have the votes to formally abolish ED. So they can work, in concert with SCOTUS, to functionally abolish it instead. I do not have the language for how concerning that should be for all of us. That means the federal government of the United States, all parts not just the executive, is now explicitly ignoring the US Constitution in order to advance its political aims. We are not "descending" into a constitutional crisis, we've already arrived.

Baker’s concerns were echoed by Justice Jackson: the issue is not just about specific programs embedded in law, but the balance of power upon which the American democratic framework is built:

If a President runs roughshod over the carefully crafted statutes that authorize and animate the Federal Government (as the District Court’s preliminary findings show to be likely happening here), he discards and disables the democratic system that created those laws

In McMahon v. New York, Sotomayor’s dissent echoes similarly dark theme themes:

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it…The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.