So much for the Supreme Court decisions that went against Trump. What about the ones in his favor?
Going from least to most important:
West Virginia v. BPJ
This one allowed states to bar transgender athletes from girl's and women's sports. Democrats have usually kept quiet on this one. And my response is, fine! It may not be a fashionable view on my side of the aisle, but there are biological and medical differences between males and females that current medical technology cannot overcome. One of our side's arguments that there is no need for rules because the numbers are so small. But the numbers are not zero. The cases in controversy involved actual individuals in that situation. Another argument is there is no need for a national rule, and it should be locally decided. Which is fine. The Supreme Court does not say that states must ban transgenders from female sports, only that they may. And they left undisturbed a prior decision that bars employment discrimination against transgenders on the perfectly reasonable ground that employment and sports are different. The dissent would not impose a categorical rule but would require schools to decide on a case-by-case basis. The majority allows decisions on a case-by-case basis but does not require it. Fine by me.
National Republican Senatorial Committee v. Federal Election Commission
This case struck down a longstanding rule limiting the ability of political party organizations to coordinate with and spend money on individual candidates, so long as donations to parties are not earmarked for one particular candidate and are properly disclosed. The basis of this ruling is First Amendment freedom of speech. I am somewhat ambivalent on this one. The immediate effect would be to give the Republican Party an advantage in spending on its candidates, since it has larger (much) war chest than the Democrats. I do not think it is too cynical to believe that this fact may have played into the Supreme Court's decision. On the other hand, the decision comments, and I agree, that a lot of our current problems are the result of the weakening of political parties and their takeover by interest groups. A stronger party structure would probably have screened out Graham Platner, for instance. On the Republican side, a stronger party structure might have stopped Ken Paxton or Victor Marx. To say nothing of you-know-who. Weakening of parties and their takeover by interest groups has undermined democracy in other countries. Activists have a longstanding tendency to see themselves as the voice of the people simply because they are not political insiders. But political insiders are often closer to the median voter than activists. Party hacks are also less likely to see opponents as enemies and policy disputes as existential struggles.
At the same time, I can see other objections here. One is that US democracy really is facing an existential struggle and ordinary rules do not apply. Another is that our parties are weakened past all recovery. And finally, the Supreme Court now is saying that our politics may be improved by allowing closer coordination between candidates and parties. But how long before they decide that the First Amendment also compels coordination between candidates and interest groups? Just for the record, I don't think our political parties are unsalvageable, at least not yet. The reason activist are so angry at party hacks is that party hacks still have significant power. On the other hand, I do think we are facing an existential crisis that saying this will work out well in the long run is useless if our democracy is overturned in the short run. And I don't trust this Supreme Court as far as I can spit.
Markwayne Mullin v. Al Otro Lado
This case ruled that asylum seekers have no right to apply for asylum until they physically enter the US. The practical upshot of this is that the Trump Administration can kill asylum altogether by closing the border and physically keeping out people who otherwise had a good claim. The majority stuck to the polite assumption that this was merely a policy of "metering" -- requiring asylum seekers to enter the country at a manageable pace. The dissent pointed out that in reality, it is used to prevent any asylum applications whatever.
Look, some sort of "metering" is going to be necessary to prevent the sort of all-out border chaos that brought Trump to power in the first place. In his first term, Trump's ultimately successful approach to border control was the "remain in Mexico" policy, requiring asylum seekers to wait in Mexico while their claims were processed. The results were brutal. Asylum seekers waited in squalid conditions, often without adequate food or shelter, preyed upon by roving gangs. But, so far as most Americans were concerned, out of sight, out of mind.
My view when Biden came to power was that he should keep this policy but make it more humane by offering some sort of protection and basic sustenance to people waiting -- enough to avoid a humanitarian crisis, but not enough to encourage people to show up who did not have a valid claim. Instead, he ended Remain in Mexico without putting anything in its place, resulting in an uncontrolled flood of entries. In an effort to control the border, Biden attempted an alternative -- allowing people to apply for asylum from third countries and be admitted in an orderly fashion if approve. Naturally this was unsatisfactory to hardcore MAGA types who regarded any immigration as unacceptable. It came too late for more moderate types and was easy to conflate with the border chaos. If Democrats ever again have the opportunity to make immigration policy, it seems to me that the only way to balance the need for border control with basic humanitarian concern is to allow for application from outside the country. This may require changing existing law.
Allowing the President to halt the entire asylum system by physically blocking applicants violates the spirit, if not the letter, of the law. It is, however, the sort of power the Supreme Court would willingly entrust to a hypothetical future Democratic Administration because they are most unlikely to use it. And it is not the Supreme Court's worst opinion in the recent batch because it merely ratifies the existing situation. At least it does not make things worse than they already are.
Mullin v. Doe
Worse than the Supreme Court's ruling the President can blow up the entire asylum system, which at least merely ratified what was already in place, was their ruling that he can also kick out anyone with Temporary Protected Status (TPS). The majority explained by way of background that long before the relevant statute was enacted, Presidents had been granting relief from deportation to people from countries that were experiencing a major humanitarian crisis. The status was also revocable at will and not subject to any oversite whatever. Finding that this gave the President too much unbridled discretion, Congress enacted a statute setting forth specific procedures to be followed. The Secretary of Homeland Security must consult with the relevant agencies about conditions in the country, review their findings, make a decision and publish it in the
Federal Register.. At the same time, the statute declares TSP findings to be unreviewable. What are we to make of that?
The majority held that unreviewable means that following the necessary steps is really optional. If a Secretary of Homeland Security (Kristi Noem, say) skips the necessary review there is nothing anyone can do about it.* The dissent argued that even if the final decision is unreviewable, the court can order the Secretary to go back and at least comply with the mandatory procedures. I am not sure how useful this is if the Secretary can do the mandatory review of records and then simply ignore the evidence! The plaintiffs -- Syrian and Haitian refugees -- argued that Trump violated their equal protection rights under the Constitution because he was excluding them because of their race. The majority said nonsense, Trump simply doesn't like the law that protects immigrants whose home country is unsafe and decided to ignore it. So apparently a Republican President is free to disregard any law he dislikes. Clarence Thomas, in a concurring opinion, said that non-citizens have no constitutional rights, and that the Equal Protection Clause only applies to states and the federal government is free to do all the racial discriminating it wants to. (No wonder some people see him as self-hating!). The dissent pointed out some of the things Trump has actually said about Haitians -- comments so vulgar the majority could not bring itself to repeat them.
And then, of course, there are the real-world consequences of the decision, which the majority prided
itself in ignoring. The Supreme Court gives the green light to stepped-up ethnic cleansing. No Haitian is now safe. And the harm is not just to Haitians living in the US. Our home health and nursing homes in Florida and Ohio have come to rely heavily on Haitian labor. I have thought for some time that nothing would make Trump's ethnic cleansing more unpopular than the sight of ICE raiding nursing homes and arresting people who change granny's diapers. So why isn't there a huge outcry over this? Granted, seniors in nursing homes are not a powerful interest group. But what about the nursing home industry? What about family members of seniors in nursing homes? What about the AARP? Why aren't any of these groups screaming bloody murder?
Still, bad as this decision is, it could worse. For one thing, it seems compatible with the Supreme Court believing a Democrat might be President again some day. No doubt they think this power can be safely entrusted to a Democrat because they would never use it. It is also a matter of statutory interpretation rather than constitutional mandate. Other executive actions are still subject to judicial review. The statute really did say that the Secretary of Homeland Security's determinations are unreviewable. What can be enacted by statute can (hypothetically) be overturned by statute. Incredibly, the House of Representatives has actually
passed legislation extending Haitians' protected status. Hypothetically the
Senate could pass it too. Needless to say, it seems vanishingly unlikely given (a) the super-majority requirements of the filibuster and (b) that Congress will be out of town during August, will spend September trying to avert a government shutdown, and then will take off during October to campaign. But I suppose it could come up for a vote if the AARP, the nursing home industry, and others raise a big enough stink. And if Florida and Ohio Senators (all Republicans) support such legislation, maybe they will give enough other Republicans a permission structure. Needless to say, Trump would never sign such legislation, but he doesn't have to. He can simply let it become law without his signature.
Alas, all of this seems most unlikely, and the consequences of mass deportations will be devastating, both for Haitians and for the US. But still this was not the worst decision.
This is the one that threatens to overturn the rule of law altogether, and that strongly suggests the Supreme Court never expects a Democrat ever to be President again.
Congress has created a number of multi-member regulatory commissions, including the Federal Trade Commission, that it requires have a mixed number of Democrats and Republicans and shields from being fired by the President. In the case of the Federal Trade Commission (FTC), there are five members -- two Democrats, two Republicans, and a chair chosen by the President. By picking the chair, the President's party is able to have a majority. Members serve seven-year terms and cannot be removed by the President except for
"inefficiency, neglect of duty, or malfeasance in office." All nominees must be Senate-approved. This arrangement, it must be noted, goes back to 1914.
The Constitution gives the President power to appoint heads of executive departments, subject to the advice and consent of the Senate. It is silent on who has authority to fire the heads of executive departments. The First Congress vested that power solely in the President and, despite some attempts to limit that power, it has generally been accepted as belonging solely to the President until the FTC was created in 1914. The Supreme Court first ruled on the issue in 1926 -- twelve years after the creating of the FTC -- by upholding the President's unrestrained power to fire federal executive officials. However, in 1935, the Supreme Court carved out an exception in the case of multi-member commissions exercising quasi-judicial powers. The Supreme Court's primary concern at the time, it should be noted, was limiting President Frankin D. Roosevelt's power to fire Hoover appointees. Since then, Congress went on to create numerous other independent, multi-member agencies required to be bipartisan and limiting the President's power to fire members.
The Supreme Court swept all of this aside and gave the President unlimited power to fire members of such commissions. In favor of this decision, the Supreme Court argued that all executive power vests in the President, the FTC is an executive agency, and its power must therefore vest in the President. It also offered various historical arguments -- the Founders vested all executive power in a single official despite bad experience with King George; the states had attempted having executive councils in place of a single official and it did not work well; despite the Constitution's silence on who had power to fire executive official, the first Congress vested that power in the President alone and subsequent Congresses refrained from changing the rule for a long time, so the original statute is incorporated in the Constitution. And Chief Justice Roberts left open that possibility that at least some non-executive officials can be protected from being fired by the President. The Supreme Court has made
fairly clear that it does consider rules protecting the Federal Reserve from being fired by the President to be constitutional, a position that Roberts reiterates. He also mentions non-Article III federal judges, i.e., specialty judges who do not have life tenure.
Limiting the decision to multi-member boards is bad enough. It means that the President can fire any member of such a board whose actions displease him. The obvious example is the Federal Communications Commission (FCC), where Chariman Brandon Carr makes a regular practice of threating the licenses of television stations that run news that displeases Donald Trump. Slaughter authorizes Trump to fire all other members of the FCC and replace them with Brandon Carr clones, and even to issue directives to the FCC to pull licenses of such stations and fire anyone who refuses to comply. And it just might get worse.
The opinion is
studiously silent on whether any Civil Service protections from firing pass constitutional muster, even though the Supreme Court has upheld such protections since
1886. Even if the Court has not removed Civil Service protections,
one multi-member commission is the one that decides whether removals of government employees comply with Civil Service protections.
Slaughter now authorizes Trump to fire any member of the Merit Systems Protection Board who rules against him, thereby seriously undermining Civil Service protections to begin with. But at least such decisions are subject to judicial review.
Slaughter invites challenge as to whether the Constitution allows
any civil service protections at all. While the
article I am citing focuses primarily on how undermining or eliminating Civil Service protections the danger is much worse. It means that Trump can order public employees to take illegal actions and fire everyone who refuses. Since the President's power of pardon federal crimes under the Constitution is absolute, and since the Supreme Court has already given (Republican) Presidents immunity from prosecution for public acts, this decision poses a mortal threat to the rule of law. And, even worse, it invites challenge to see whether the President can fire judges who are not life tenured.
And here is the most alarming part of all. The Supreme Court originally upheld multi-member commissions protected from firing to restrain the power of a Democratic President. The Roberts Court has now removed that rule in order to enhance the power of a Republican President. It seems unlikely that they would entrust a Democrat with such a power, any more than the Court was willing to do so in 1935. And I do not see
any way the Supreme Court can hedge in order to uphold such firings by a Republican and reject them by a Democrat.
That can only mean that the Supreme Court is confident that Trump has successfully rigged the system to ensure that no Democrat can ever by President again.
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*Presumably they would not have upheld the rule if she had failed to publish, or how would anyone know it was a rule at all?
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