WASHINGTON — President-elect Donald Trump’s ambitious agenda may backfire on an institution he did so much to shape: the Supreme Court.
With a 6-3 conservative majority, including three Trump appointees, the court has spent the past few years facing criticism from the left. If the justices stick to their stated legal principles, the new administration may be on the losing side, at least for a while, legal experts say.
“I think if President Trump’s executive branch tries to push the law past the breaking point like the Biden administration did, then yes, the courts will check that power,” attorney John Malcolm said. At the Heritage Foundation, a Trump ally.
Brianne Gorod, a lawyer with the left-leaning Center for Constitutional Accountability, said the court still had a key role to play in some of the rulings, even though it did not hold Trump accountable.
“Trump has made it clear that he will be less concerned with upholding the Constitution and federal law going forward than he was last time in the White House, so the courts, including the Supreme Court, will be under scrutiny for their role as a vital check on our constitutional structure,” he added. .
History is a guide, including several high-profile jobs in Trump’s first term, including an attempt to end a program protecting young immigrants known as “Dreamers” from deportation and a plan to add a citizenship question to the census.
The Trump administration also suffered a major loss in 2020 when the court ruled 6-3 to extend workplace discrimination protections to LGBTQ workers, a decision that angered conservatives.
He has won his fair share of cases, including a travel ban on people entering the United States from Muslim-majority countries.
Trump’s losses often stem from the court blaming federal agencies for not following proper procedures when issuing new policies.
“I think the Supreme Court will force the administration to do the real work required to make regulatory changes,” said Jonathan Adler, a professor at Case Western Reserve University School of Law.
The court has changed slightly since then, with Trump’s third appointee, Amy Coney Barrett, joining at the end of his first term to create the current 6-3 majority. Meanwhile, President Joe Biden nominated Justice Ketanji Brown Jackson to replace liberal Justice Stephen Breyer.
Trump may also have the opportunity to further shape the court in his new term, with the possibility of one or more top conservative justices. fall down.
During the Biden years, the court set new precedents in ruling against the administration, which theoretically included Trump.
The court adopted a theory called the “fundamental questions doctrine” to strike down Biden’s policies based on broad uses of executive power not expressly authorized by Congress, including his sweeping plan. pay off student loan debt.
The trial is at the beginning of this year It overturned a 40-year precedent It respected federal agencies soon to be run by Trump again while interpreting vaguely worded laws.
Trump may have more leeway than the law restricts him on some issues where the president has traditionally received more respect from the courts.
Adler said immigration, foreign policy and international trade are areas where Trump has flexibility to move.
Another contentious issue on which the Supreme Court could side with Trump will be an attempt to enforce the Comstock Act, an obscure 19th-century law that banned abortion-related materials from being sent through the interstate mail. It could potentially be applied to the abortion pill mifepristone.
But on other issues, such as environmental regulation, efforts to deregulate more than the law allows can be difficult to defend, he added.
One issue where Trump will almost certainly run into legal waters is his plans to end birthright citizenshipIt is a right established in the Constitution.
For example, proposals to allocate funding to liberal jurisdictions that refuse to cooperate with the administration on rounding up undocumented immigrants or rolling back protections for transgender students in schools will also lead to lawsuits that could end up in court.
While the Biden administration has suffered many losses over the past four years on abortion, gun rights, regulatory issues and more, it has won some big victories in the cases where it has intervened.
Last year, the court rejected a conservative challenge to further weaken the landmark Voting Rights Act and also rejected an outside legal theory that would have given state legislatures unlimited power over election rules. A court this year threw out a lawsuit aimed at overturning mifepristone’s federal approval.
But some on the left aren’t convinced the court will hold Trump to the same standards as Biden, citing in part a ruling earlier this year. Granting certain immunity to Trump For attempting to overturn the results of the 2020 elections. The court’s actions in this case undermined any chance of a trial before the election.
“The Supreme Court majority gave us no reason to expect that he would be anything more than a rubber stamp for his worse impulses,” said Alex Aronson, who runs the left-leaning legal group Judicial Accountability. “They have second-guessed their support for an imperial presidency and demonstrated their willingness to take away the rights and liberties of the American people.”