Dem
47
GOP
53
So far, 132 lawsuits have been filed against Donald Trump and his administration. That's more than two per day. Most allege that the president or his henchpeople have committed illegal acts. Two of these cases stand out above the others as key tests of whether the Supreme Court is in the tank for Trump or will stand tall and defend the Constitution. If it caves on these, that will be the formal signal that democracy is over and we are now in autocracy.
The first case is about impoundment. The president has taken an oath to take care that the laws are faithfully executed. Those laws include the laws where Congress has appropriated money from the treasury and directed that it be spent in a particular way specified in the law. By impounding funds, the president is asserting that he doesn't have to obey spending laws he doesn't happen to like. The legal case here against impoundment is very strong.
So is the judicial case. The Watergate-era Impoundment Control Act of 1974 clearly states that if the president thinks some funds should not be spent, he must appeal to Congress and abide by its decision. It is a given that the three Supreme Court justices appointed by Democratic presidents will never accept impoundment as legal, especially not from an out-of-control president who has no respect whatsoever for the law. Are there two more votes? In 1985, when working in the White House, John Roberts wrote a memo stating that "no area seems more clearly the province of Congress than the power of the purse." In 2013, then-appellate judge Brett Kavanaugh wrote that "even the President does not have unilateral authority to refuse to spend" funds appropriated by Congress. This doesn't mean that they will vote against Trump now, but the arguments for the Impoundment Act are very strong and there is no real argument saying the president can disobey laws he doesn't happen to like. That is a separation of powers issue, and does the Supreme Court really want to effectively abolish Congress' main power? Especially since telling Trump he can ignore one branch of government (i.e., the legislative branch) will cause him to conclude he's free to ignore the third branch (i.e., the judiciary).
The other key case is the birthright citizenship case. Can the president simply overrule the actual words in the Constitution by executive order? Do the justices want to risk the next Democratic president writing an XO limiting the Second Amendment to the smooth-bore muzzle-loading muskets available in 1789 and not allowing it to be applied to any firearms not available then? The wording of the Fourteenth Amendment is clear: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." Undocumented immigrants are not immune foreign diplomats. If undocumented immigrants were not subject to U.S. law, they could not be arrested. In United States v. Wong Kim Ark, the Supreme Court ruled that the exception applies primarily to children of foreign diplomats. It also once held for Native Americans living on reservations, but that is no longer true.
In short, the legal cases against Trump on both impoundment and birthright citizenship are extremely strong. If the Court caves on these, it is game over. If it rules against Trump, then it remains to be seen how he responds. Will he openly defy the Court? How will Republicans in Congress respond to that? Do they want to set a precedent that a future Democratic president might just latch onto? How will the public react to Trump openly defying the Court? We might find out. (V)