WASHINGTON – From the earliest days of his travel ban against predominantly Muslim countries to his latest efforts at reversing the results of the 2020 election, President Donald Trump has dominated much of the Supreme Court’s docket.
Even in the autumn of his presidency, little has changed. The administration came before the justices the week after Election Day in hopes of dismantling the Affordable Care Act, perhaps the most celebrated achievement of his predecessor. Later this month, it will defend its plan to exclude noncitizens from the census count used to apportion seats in the House of Representatives.
The list of Trump-related cases heading the high court’s way remains long even as the president’s days grow short. He wants a rematch with New York City prosecutors seeking access to his tax returns and financial records. He wants to continue building the wall along the southern border while keeping migrants seeking asylum on the Mexican side.
But all that could change after Jan. 20, when President-elect Joe Biden takes office. Many of the cases tied to Trump’s policies and personal entanglements are likely to become moot or, at least, undeserving of the Supreme Court’s time and attention.
“I think that the president has tested the boundaries of what was expected in ways that have generated a lot of litigation,” said Ian Gershengorn, who served as the Justice Department’s acting solicitor general during the waning days of the Obama administration. “I would just think the court would want to take a deep breath.”
The justices appear to be doing just that. For the past month, they have been sitting on a petition from Trump’s lawyers that seeks to block the New York subpoena for his tax and financial documents. For two weeks, they have left unanswered his lawyers’ request to intervene in Pennsylvania Republicans’ effort to disallow absentee ballots received for three days after Election Day.
And in the latest sign of the upcoming political transition, the House Judiciary Committee asked the high court Tuesday to postpone the Dec. 2 oral argument in its battle to gain access to grand jury information that was redacted from former special counsel Robert Mueller’s report on Russian interference in the 2016 election.
The court recently agreed to hear the Justice Department’s defense of Trump’s border wall and asylum policies, which are among a bevy of immigration crackdowns challenged by immigrant rights groups. But neither case has been set for oral argument yet, leaving time for the incoming Biden administration to change the policies.
Several other immigration cases are headed to the high court, including the Trump administration’s defense of its policy denying residency and green cards to some legal immigrants who rely on public benefits. In many of the cases, policies implemented by one president can be reversed by the next without requiring action by Congress – or intervention by the nation’s highest court.
“It underscores that elections have consequences, especially when more and more of our most important federal policies are made through executive action,” said Stephen Vladeck, who specializes in national security law at the University of Texas School of Law.
Taxes and tweets
What makes Trump’s legal battles particularly unusual compared to past presidents is the number of cases affecting him personally. Both Manhattan District Attorney Cyrus Vance and New York Attorney General Letitia James are seeking his financial records for signs of hush-money payments or tax fraud. Lawsuits in New York and Washington, D.C., target the president’s business dealings with foreign and domestic governments.
Trump even has been sued by followers of his Twitter account who contend the president blocked them in an effort to “suppress dissent.” The Justice Department’s request that the high court review two lower court rulings against him has been pending for several weeks.
While federal district and circuit courts have rejected most of Trump’s arguments in cases seeking access to his financial records and some redacted parts of the Mueller report, appeals by the Justice Department or his personal lawyers have let him run out the clock and prevent disclosure while in office, said Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center. If the cases remain live, Trump will be a private citizen, and issues related to his status as president will be moot.
Since Day One, Trump has operated as president in much the same way he did as a luxury developer and reality TV host: by suing those who get in his way. If imitation is flattery, he has been rewarded by his many challengers.
The so-called “Muslim ban” he announced a week into his presidency initially was blocked, but in June 2018 the Supreme Court upheld a ban against travelers from five majority-Muslim countries. The 5-4 ruling required the vote of Associate Justice Neil Gorsuch, who Trump named to the court the previous year after Senate Republicans spent most of 2016 blocking President Barack Obama’s nominee.
But if Trump expected the Supreme Court to be friendly territory throughout his time in office, he was mistaken.
Chief Justice John Roberts, with whom the president has tangled repeatedly, sided with liberals in two recent major immigration cases. One struck down Trump’s effort to add a question on citizenship to the 2020 census. The other blocked his plan to end the Deferred Action for Childhood Arrivals program, known as DACA, that protects some 650,000 undocumented immigrants from deportation.
Now the court appears likely to upholdPresident Barack Obama’s health care law, dubbed Obamacare, for the third time in nine years. The challenge was brought by Texas and other states led by Republicans, but with the Trump administration’s support.
With a change in administration, immigrant rights advocates are hoping the court’s conservative majority will delay hearing and deciding upcoming cases – and eventually dismiss them or declare them moot.
Biden and his aides “have made clear that they are planning to discontinue many of the Trump administration’s policies, particularly with respect to asylum and the border,” said Omar Jadwat, director of the immigrant rights project at the American Civil Liberties Union. “There’s every reason to hope and expect that the Biden administration will follow through on what it’s said.”
That could sidetrack other Trump immigration policies still working their way through federal appeals courts, including those that deny asylum to migrants who do not seek protection first from a country they pass through or who do not enter the country at a designated crossing.
Census dispute remains
One contentious Trump policy will be considered by the justices on Nov. 30, the first day of their next two-week sitting. That’s because the administration is pressing to exclude millions of undocumented immigrants from census calculations used to apportion seats in the House of Representatives among states for the next decade.
Excluding undocumented immigrants likely would reduce the number of House seats in Democrat-leaning areas of California, Texas, Florida and New York, to the benefit of Republican-majority states with few immigrant communities.
It’s also possible that even after Trump has left the White House, the court will find reason to clear up challenges that could arise again in the future.
For instance, even though the dispute over absentee ballots received after Election Day in Pennsylvania would not upend Biden’s victory there, four conservative justices have expressed interest in deciding whether the state’s Supreme Court had the authority to change the state Legislature’s Nov. 3 deadline.
After the court refused Republicans’ request last month to restore the earlier mail deadline, Associate Justice Samuel Alito called it an “important constitutional issue” that “has needlessly created conditions that could lead to serious post-election problems.”
What’s more, the results of this month’s elections will mean that the House and Senate will be even more closely divided for the next two years, a formula that often leads to government gridlock. Once in office, that could lead Biden to resort to new executive actions when legislation proves elusive – and, inevitably, prompt another round of court challenges.