Will the Supreme Court stand up to the Trump administration in 2020? This question is enormously important, affecting the lives of many, as well as the future of constitutional democracy in the United States.
President Trump has taken legal positions unlike those of any other president in American history, treading into dangerous territory far beyond what the Constitution allows. But will any of the five conservative justices on the court be willing to join with the four liberal justices and say he has gone too far?
Take his cancellation of the Deferred Action for Childhood Arrivals, or DACA, program, an action that puts more than 700,000 so-called Dreamers at risk of deportation. President Obama created DACA to allow immigrants brought to the United States as children to continue to live and work here as long as they meet certain criteria, such as completing school or serving in the military and staying out of serious trouble with the law.
This should be an easy case for the court. An administrative action – in this case, canceling a program that covers hundreds of thousands of U.S. residents – requires an articulated, legitimate reason. Every lower court to consider President Trump’s action, regardless of whether the judge was appointed by a Democrat or a Republican, has ruled against the administration and held that there was no basis for rescinding DACA. But the oral arguments before the Supreme Court on Nov. 12 provided little ground for optimism that one of the conservative justices will join with the liberals in ruling against Trump.
Another cause for concern is three looming cases, to be argued in March, in which Trump is claiming unprecedented immunity from subpoenas.
The issue in one of them, Trump vs. Vance, is a state court grand jury subpoena for eight years of Trump’s business and personal records in connection with an investigation of money paid during the 2016 campaign to Stormy Daniels and Karen McDougal. Trump sued in federal court to keep his accounting firm, Mazars USA, from turning over his financial records. The federal district court ruled against him and the 2nd U.S. Circuit Court of Appeals affirmed that decision.
A second case, Trump vs. Mazars USA, involves a subpoena by the House Oversight and Reform Committee, which is investigating the same payments, as well as Trump’s financial involvement with Russian companies and the accuracy of financial statements he made to obtain loans and reduce taxes. The federal district court ruled against Trump and the U.S. Court of Appeals for the District of Columbia affirmed the ruling.
The final case, Trump vs. Deutsche Bank AG, involves subpoenas from the House Financial Services and Intelligence committees directed at two financial institutions that did business with Trump, Deutsche Bank and Capital One. Once more Trump went to court to block the subpoenas, but lost in both the district court and the 2nd Circuit.
These, too, should be easy cases. Trump is claiming that he and those with whom he does business are all immune from subpoenas. The Supreme Court unanimously rejected that proposition in United States vs. Nixon in 1974. The Watergate special prosecutor subpoenaed tapes of White House conversations to use in the prosecution of those who had been involved in the Watergate cover-up. President Nixon claimed that executive privilege protected the tapes from disclosure and that the courts could not enforce a subpoena against the president.
The court, in an opinion by Nixon appointee Chief Justice Warren E. Burger, explicitly rejected these arguments and held that the president had to comply with the subpoenas. Nixon then produced the tapes, which clearly showed that he had engaged in obstruction of justice. Just days after the release of the tapes, Nixon resigned.
If the court rules in favor of Trump in the current cases, it would be effectively saying that the president is above the law, even for actions that occurred prior to taking office. Such a ruling would irreparably damage the checks and balances integral to separation of powers under the Constitution.
So far, the Supreme Court has a mixed record on standing up to the Trump administration. In Trump vs. Hawaii in 2018, the court upheld Trump’s travel ban in a 5-4 vote, despite overwhelming evidence that the order was motivated by a desire to ban Muslims from the country. But in Department of Commerce vs. New York, the justices voted 5 to 4 to keep the Trump administration from adding a question about citizenship to the 2020 census forms. In both cases, Chief Justice John G. Roberts Jr. was seen as the swing vote.
Roberts is likely to be key in the 2020 cases involving Trump as well. Many have said that he cares greatly about the court’s credibility. The hope is that he will realize that ruling in favor of the Trump administration in these cases would not only fly in the face of established precedent; it would also make the court seem highly partisan and strike a serious blow to its institutional legitimacy. But Roberts is deeply conservative, and the critical question for 2020 will be whether he — or any of the conservative justices — can put partisanship aside and say no to Trump.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.