No American president has worked as hard as Donald Trump to sabotage the intended constitutional distribution of powers among the legislative, executive, and judicial branches of government and to bring all governmental power into his hands. Sadly, and too often, the Supreme Court under Chief Justice John Roberts has been a dependable ally of the president. The December 8 oral argument in Trump v. Slaughter, the case involving Trump’s firing of the Federal Trade Commission’s Democratic members, reveals a majority likely to overturn even a unanimous 90-year-old precedent upholding Congress’s authority to create independent agencies.
So far, the chief source of institutional resistance to Trump’s usurpations has been the lower federal judiciary. Trump’s most creative attempts to kneecap them have failed. These include a suit against every single federal district judge in Maryland—both active and senior. It was a clumsy attempt to negate a district court’s order that judges be given at least 48 hours to review any immigrant’s petition for habeas corpus before the administration could deport them or change their legal status. Another lawsuit sought an advance judicial imprimatur from the Western District of Texas for federal agency moves to extinguish collective bargaining agreements. These moves might produce legal challenges in less friendly parts of the country. The request for a get-out-of-court-free card was too much for the Trump-appointed trial judge to swallow.
But the Supreme Court has blocked lower courts from providing relief against Trump’s power grabs. In the Slaughter case, Trump has presumed to fire duly appointed administrators at will, notwithstanding explicit statutory provisions limiting his removal authority to good cause. He has made similar moves against members of the Consumer Product Safety Commission, the Federal Labor Relations Authority, the Merit Systems Protection Board, the National Labor Relations Board, and the Surface Transportation Board, among others. Lower courts have sought to enjoin Trump’s moves and keep the discharged administrators in place. They have rested on the ground that the Supreme Court has not overturned the binding legal precedent that upholds independent agencies, Humphrey’s Executor v. United States. For its part, however, the Supreme Court—using its so-called emergency docket—has approved Trump petitions to keep his fired officials in limbo until it finally decides Humphrey’s Executor’s fate. It has, instead, signaled, as did the conservative justices during the Slaughter oral argument, that a majority remains enamored of a theory of presidential removal power at odds with the constitutional text and history.
In defense of the Court, however, the scope of the removal power has long been the subject of serious debate. It is even more disturbing that the Court has indulged Trump’s constitutional Iounds, where there is no serious question that he is usurping Congressional powers. Consider, for example, Congress’s exclusive authority to establish—and eliminate—government offices and agencies. As Chief Justice (and former President) William Howard Taft wrote in Myers v. United States—a favorite citation of the Roberts Court majority: “To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed.” Yet Trump is trying unilaterally to reorganize the executive branch by eliminating agency functions and, in some cases, mothballing agencies altogether. And the Roberts Court has repeatedly sidelined lower court orders temporarily blocking Trump’s sabotage.
For example, a federal district court in Massachusetts enjoined personnel terminations and program transfers undertaken by Education Secretary Linda McMahon in response to a March 2025 Trump executive order directing her “to the maximum extent appropriate and permitted by law, [to] take all necessary steps to facilitate the closure” of her Department. The U.S. Court of Appeals for the First Circuit declined to stay that injunction. Yet on July 14, over three dissenting votes, the Supreme Court stayed the order as requested by the Trump administration, allowing the department’s dismantling to continue without explanation. As the plaintiffs’ pursuit of a permanent injunction continues to percolate in the lower courts, the Trump-McMahon sabotage continues. The Supreme Court effectively shrugged off the ongoing damage to both the department and the separation of powers.
Similarly, the Supreme Court has hampered challenges brought by unions, nonprofit organizations, and local governments to block mass layoffs undertaken in response to the February executive order, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.” In one case, a federal judge in San Francisco required the government to reinstate more than 16,000 workers fired by six agencies—an order the Ninth Circuit declined to stay. With two Justices in dissent, the Supreme Court blocked the lower court order on the ground (not actually explained in its opinion) that the nonprofit organizations named in the order lacked standing.
In a second case, a different federal district court judge issued a temporary restraining order to pause the implementation of the Trump executive order through widespread RIFs and agency reorganizations across 22 federal agencies. Again, the Ninth Circuit refused a stay of relief. This time, over Justice Ketanji Brown Jackson’s sole dissent, the Supreme Court blocked the lower court on the ground that the executive order and OPM’s implementing memorandum are likely lawful. An unsigned opinion for at least a majority of the justices, along with a concurrence by Justice Sonia Sotomayor, suggested that such challenges would have to be assessed on an agency-by-agency basis.
The effect of the Supreme Court’s interventions—each based on a narrow, technical understanding of the litigation—is a deliberate obliviousness to the administration’s actual ambitions. In contrast, the district courts issued careful opinions detailing the harms portended by the “critical transformation of the Federal bureaucracy” that Trump’s executive order promised to accomplish without Congress’s input.
Trump has been equally aggressive in seeking what might be called workarounds that undermine Congress’s power to control federal spending—arguably the legislature’s key lever in a constitutional system of checks and balances. A recent New York Times editorial usefully outlined Trump’s three key strategies: Refuse to spend money that Congress has allocated, spend government funds in ways that Congress has not authorized, and overturn Congress’s decisions to spend money on specific programs by undermining the relevant agency’s capacity to implement the programs he disfavors. Just as the Times observed, Trump “has repeatedly ignored laws passed by the House and the Senate to spend money, or not spend it, based on his whims and agenda.”
Historically, it has primarily been the duty of congressional oversight committees or the Government Accountability Office (GAO), headed by the Comptroller General, to call out such lawlessness. Indeed, as detailed in a November report on the administration’s behavior, Brookings Senior Fellow Molly Reynolds states that the GAO has so far recorded seven instances of second Trump administration legal violations. She adds that it “is likely a significant undercount, since it only includes actions on which GAO has completed an investigation.” Among the brazen violations not yet assessed by GAO is the administration’s freeze on food assistance under the Supplemental Nutrition Assistance Program (SNAP) during the recent government shutdown. Once again, after a federal district court ordered that SNAP payments resume and a Court of Appeals denied a stay, the Supreme Court came through for the Trump administration, again without explanation. Similarly, the Court had blocked lower court attempts to force the executive to comply with Congress’s approved spending for foreign aid and education.
The possible exceptions to the Roberts Court’s forbearance from disciplining Trump’s lawlessness may come in cases that fit a third category. They do not involve statutes at odds with the Roberts Court’s theory of the unitary executive. Nor do they involve Trump’s blunderbuss attempts to bypass the constitutional inconvenience that power over government structure and spending belongs to Congress, not the executive. These are cases in which Trump purports to act under duly enacted statutes but stretches his legal authority beyond what the legislative text will bear.
For example, and to Trump’s undoubted dismay, the November 5 oral arguments in two Supreme Court cases challenging his tariffs—Trump v. V.O.S. Selections and Learning Resources v. Trump—saw a majority of justices raise concerns that may doom his current policies. A loss before the Court would deal a severe political blow. As the Court of International Trade explained, the challenged orders have “imposed tariffs of unlimited duration on nearly all goods from nearly every country in the world.” Voiding these tariffs would undermine Trump’s political credibility at home and weaken his economic leverage abroad.
In issuing his challenged tariffs, Trump explicitly relied on the 1977 International Economic Emergency Powers Act (IEEPA). That law provides certain authorities to allow the President “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” Among those powers is the authority to “regulate . . . any . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest.” In a technical sense, what the tariff cases are about is the scope of power Congress conferred on the President when it used the word, “regulate.”
Four orders based on the IEEPA earlier this year imposed tariffs on Canada, China, and Mexico in response to an emergency Trump declared over the flow of illegal drugs into the U.S. Three other IEEPA-based orders, including the so-called Liberation Day tariffs, are rooted in a declared emergency caused by “a lack of reciprocity in [U.S.] bilateral trade relationships, disparate tariff rates, and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption.” The core of the administration’s argument for all these measures is that the tariffs are a form of “regulation” of imports authorized by IEEPA in response to “unusual and extraordinary” threats.
Stepping back from the technical issues of statutory interpretation, the boldness of Trump’s tariff schemes is a remarkable power grab. The U.S. has not imposed tariffs of this magnitude since the 1930s. As I wrote in a Brookings paper co-authored with Robert E. Litan, a Trump victory would “all but entirely transfer the full scope of Congress’s tariffing power under the Constitution from the legislative to the executive branch.”
During the oral argument on tariffs, the justices’ skepticism had two complementary strands. One involves a close reading of the word “regulate,” using traditional technical rules of statutory construction. For example, IEEPA is not a revenue-raising statute; the words “tariff,” “duty,” and their synonyms do not appear in it. As Justice Elena Kagan pointed out, the word “regulate” appears in a list of verbs that confer various powers on the president. Still, no other verb has anything to do with raising revenue. When Congress lists terms in that way, the words are assumed to fall within the same category, which in IEEPA is arguably “forms of administrative control,” not measures to raise money.
Justice Sonia Sotomayor further noted that the objects of permissible “regulation” under the IEEPA extend beyond imports. If the word “regulate” allows the president to impose tariffs on imports, IEEPA would also enable the levying of tariffs on a wide variety of transactions, including exports, which Solicitor General D. John Sauer acknowledged would be unconstitutional. More than one Justice pointed out that all but one of the other existing federal statutes that confer tariff authority on the president use the word “tariff” or “duty”; the one exception is a statute that gives the president power to “adjust imports,” but does so in a statute that explicitly anticipates the levying of duties.
Sauer’s main counterargument rests on the drafting history of the IEEPA. The relevant language of the statute was drawn from another law—the Trading with the Enemy Act of 1917 (TWEA). Before IEEPA was enacted, a lower court had allowed President Richard Nixon to impose a 10 percent duty on imports under the authority of the TWEA. Because Congress was presumably aware of that case and borrowed the TWEA’s language for the IEEPA, the Government argues that the authority to “regulate” must mean the same thing under both statutes, including “regulation” by tariff. (At the same time Congress enacted the IEEPA, it limited TWEA’s authority to wartime.) Arguing on behalf of the private parties challenging Trump’s tariffs, however, former Deputy Solicitor General Neal Katyal insisted that there was no evidence Congress was either attentive to or agreed with the earlier decision.
The second strand of skepticism focused on the bigger picture—namely, the stakes for the separation of powers and checks and balances if the Court were to accept Trump’s broad understanding of his statutory authority. Justice Neal Gorsuch has been the most voluble member of the Court in expressing concern that Court precedents defining the so-called “nondelegation doctrine” have left Congress too much leeway to abdicate fundamental policy-making power to the executive branch. His questions echoed that concern. At one point, he got the Solicitor General to concede that, under Trump’s view of the IEEPA, another president could unilaterally “impose a 50 percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change”—which, for Gorsuch, would not be an attractive proposition.
Both Gorsuch and Roberts also joined the liberal Justices in pressing Sauer on what has come to be called the “major questions doctrine”—a requirement that the executive branch find exceptionally clear statutory authority when it purports to exercise administrative power in an “unheralded” way. Sauer responded that less explicitness is required when the president is exercising power in a foreign relations context and when the statute being invoked is plainly intended to equip him to respond to emergencies. Roberts seemed skeptical. He pointed out that the burden of tariffs falls domestically, not just abroad. Roberts voiced his doubts as follows: “You have a claimed source in IEEPA that had never before been used to justify tariffs. . . and correct me on this if I’m not right about it—the justification is being used for a power to impose tariffs on any product from any country for—in any amount for any length of time. That seems like—I’m not suggesting it’s not there, but it does seem like that’s major authority, and the basis for the claim seems to be a misfit.” If the liberal Justices are joined in their own patent skepticism by even two members of the Roberts-Barrett-Gorsuch trio, Trump’s current tariff initiatives go down.
At least some conservative Justices joined in another unusual move in late October that also suggests a willingness to entertain arguments that Trump is overreading the statutory powers Congress has actually delegated to the President. Trump v. Illinois is Trump’s application to the Supreme Court to stay a lower court order blocking the administration from federalizing and deploying the National Guard within Illinois. The relevant statute allows a President to place National Guard troops under federal command in any of three circumstances. The only one even hypothetically relevant is if “the President is unable with the regular forces to execute the laws of the United States.”
U.S. District Court Judge April M. Perry found this statutory trigger irrelevant. The Trump administration claimed that the statute’s reference to the inability of “regular forces” to execute the laws referred to the “execution of the federal laws by the federal officers who regularly enforce them, without undue harm or risk to officers.” Perry rebuffed that reading, concluding that the mention of “regular forces” referred to the U.S. armed forces, not civilian officers—a circumstance that would permit law enforcement by the National Guard “extremely rarely.” To invoke that clause, the President would have to assert that federal military force alone, without the National Guard, would be insufficient to execute federal law, which is a highly counterintuitive proposition. She concluded that, regardless of the government’s interpretation of “regular forces,” “there has been no showing that the civil power has failed” to execute the laws.
In upholding Judge Perry’s grant of preliminary relief, a unanimous Seventh Circuit panel declined to settle which reading of the statute was correct. The panel held that, regardless of what constitutes “regular forces,” the administration had failed to show that federal civil officers were unable to enforce the law. When the Trump administration turned to the Supreme Court to stay the order below, the Court directed the lawyers for both sides to file additional briefs on “[w]hether the term ‘regular forces’ refers to the regular forces of the United States military, and, if so, how that interpretation affects the operation.” It is possible that a majority of Justices would like to decide the case against Trump if they can be persuaded that he is misreading the statute, as opposed to just fabricating an emergency.
Of course, neither the Justices’ skeptical questioning of tariffs nor their request for additional briefing on National Guard deployment ensures that Trump’s challengers will prevail. Nonetheless, even a suggestion of legal pushback contrasts with the Court’s reaction to his independent agency firings and other cases in which lower courts have resisted Trump’s usurpations of legislative authority. Writing about the tariff cases, Abbe Gluck, a Yale Law School professor and leading scholar on statutory interpretation, has observed: “[A] focused textualist analysis coming out against the president [is less] likely to be viewed by the president as a major smack down. And that, indeed, may be part of the attraction of this approach for at least a portion of the court.” It is also why these cases are an inadequate counterweight to the Court’s enthusiasm for unitary executive theory and its blinkered reaction to Trump’s blitzkrieg against pluralistic democracy.
The post How the Roberts Court Indulges Trump’s Constitutional Workarounds appeared first on Washington Monthly.
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