The court will soon hear a challenge to Trump’s power to fire a member of the Federal Trade Commission — an action that flies in the face of a 90-year-old Supreme Court precedent. It will also hear a challenge to Trump’s attempt to revoke birthright citizenship, which the 14th Amendment explicitly protects.
But the conservative-dominated court has been a very good ally to Trump of late, letting fly some of the worst of Trump’s power grabs, including his decision to withhold congressionally-appropriated money and destroy congressionally created government offices.
Just as important, in their arguments — both official and quietly delivered without debate or rationale on the courts furtive shadow docket — conservative justices are ignoring evidence that Trump is not acting in good faith.
“In the past, the government has enjoyed what legal scholars call the ‘presumption of regularity.’ Judges assume they can rely on government officials to present facts accurately and give true reasons for their actions — and can defer to those officials at times as a result. The Trump administration does not deserve this presumption,” the Times argues.
Lower court judges appointed by presidents of both parties have described the administration’s actions, arguments and defiance as “egregious,” “capricious,” “nonsensical,” “unconscionable,” “baseless,” “cringe-worthy,” “Kafkaesque,” “blatantly unconstitutional” and “a sham.” Judge Karin Immergut, who Trump appointed to the U.S. District Court for the District of Oregon, even described Trump’s professed reasons for deploying the National Guard in Portland as “untethered to the facts.”
“Yet the Supreme Court remains blithely credulous of the administration,” says the Times. “To take one example, Justice Kavanaugh minimized the burden of wrongful stops on legal immigrants by saying they would be briefly questioned and then could ‘promptly go free.’ That is often not the reality of the Trump administration’s immigration roundups. Instead, immigration agents conduct military-style raids that terrify children and hold even citizens in custody for hours or days or even weeks.”
“Judges on lower courts, including some appointed by Mr. Trump, have upbraided the Trump administration for its falsehoods and bad faith and begun to treat its arguments with the basic skepticism they have earned. The justices should do the same,” the Times writes.
Additionally, the court keeps letting Trump grab power “in dubious ways,” the Times opines, referring to the court’s September decision allowing the Trump to withhold $4 billion of foreign aid that Congress had directed to be spent by the end of that month.
“In a single paragraph of explanation, the majority let the policy stand, citing a president’s authority to conduct foreign policy. That is a far-reaching claim at odds with the country’s long history of respecting Congress’s power of the purse. Mr. Trump’s impoundment of appropriated funds is unconstitutional, full stop,” the Times said.
The conservative majority has also let the president begin to dismantle the Department of Education even though only Congress has the power to abolish an administrative agency and it greenlit Trump’s firing of members of the National Labor Relations Board and other agencies without cause, contravening the vision of independence Congress had when it created those agencies.
“Given the largely supine nature of Congress under Republican control, the stability of American democracy depends more than it should on the Supreme Court. So far, it is failing to live up to its constitutional role,” reports the Times. “But we’re only in the first quarter of this term. There’s a long way to go.”
Read the Times opinion column at this link.
