Supreme Court Teaches Trump a Lesson

      Midway through the third year of his presidency, Donald Trump extravagantly declared that the Constitution’s Article II gives him “the right to do whatever I want as president.” The Supreme Court reminded him once again last week [June 18] that the court can set limits on his power even as the justices are weighing whether to enforce subpoenas by investigative bodies looking into Trump’s personal finances.

      The Court ruled, narrowly but decisively, that Trump’s Cabinet secretaries cannot eliminate the Obama administration’s soft-on-immigration policy known as DACA just because the president wants it done and just because the president stirs up anti-immigrant feelings to appeal to his political base. The policy gives an estimated 700,000 so-called Dreamers — immigrants brought to the United States as children — protection against deportation as well as authorization for legal employment in the United States, the only country most have ever known.

      Writing for a five-vote majority in Department of Homeland Security v. Regents of University of California, Chief Justice John G. Roberts in effect told the administration that it can rescind the prior policy only by following procedures established by law. For the second year in a row, Roberts gave Trump a remedial lesson in constitutional law just as the Supreme Court was nearing the end of a politically charged term.

      One year ago, Roberts was also the author and the pivotal vote in another closely divided decision, Department of Commerce v. New York, that blocked Trump’s lapdog secretary of Commerce, Wilbur Ross, from adding a citizenship question at the president’s order. In that case, as in the DACA case, Roberts acknowledged the president’s authority to make the policy decision at issue but insisted, as a rule-of-law technician, that the executive branch has to follow the law, not the president’s partisan views or whims.

      A year ago, Roberts cast the decisive vote in the census case after finding the Commerce Department’s rationales for adding a citizenship question to be “pretextual.” In the DACA case, Roberts also faulted the Homeland Security secretaries’ efforts to justify the policy decision — in particular, Kirstjen Nielsen’s memorandum purporting to add new rationales to her predecessor’s earlier decision to rescind the policy. “This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision,” Roberts wrote.

      Predictably, Trump and many of the conservative Court watchers chimed in quickly to criticize the Court generally and two of the justices personally: Roberts and Trump’s own appointee, Neil Gorsuch, who authored the 6-3 decision earlier in the week [June 15] to extend the federal job discrimination law to gay and transgender employees.

      Trump’s tweet after the DACA decision attacked both of the defeats in effect as betrayals of the conservatives and Republicans who worked so hard to remake the Court in Trump’s own image with Gorsuch and his second appointee, Brett Kavanaugh. “These horrible and politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people who are proud to call themselves Republicans or conservatives,” Trump tweeted.

      The conservative TV talk show host Mark Levin was particularly incensed after Gorsuch wrote and Roberts joined the decision in the LGBT rights case, Bostock v. Clayton County. Levin called the ruling an example of  “complete disregard for the law” and “legislative activism in violation of separation of powers.” He went on: “Roberts no longer pretends to be a judge; now Gorsuch has left his robe behind as well (and it’s not the first time).

      Roberts joined Gorsuch’s opinion without writing separately, but both of the justices had signaled during oral arguments that they were likely to find that Title VII’s prohibition against discrimination “because of sex” necessarily applies, because of plain text meaning, to discrimination on the basis of sexual orientation or gender identity. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote in the money quote in the decision. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

      Trump appeared to be unfazed by Monday’s decision once he reacted after maintaining Twitter silence for several hours. “They’ve ruled, and we live with the decision,” he told reporters. By contrast, Trump vowed promptly after the DACA decision that the administration would take the Court’s cue to try again to eliminate the policy.

      For a nation beset by a deadly pandemic and a deep recession, the Court’s decisions provided a measure of consolation that the rule of law still holds in this constitutional republic, however ill-informed the president may be. “The central message” of the rulings, Harvard law professor Richard Lazarus told NPR’s Nina Totenberg, “is the law applies to everybody, and that includes the President of the United States."

      Lazarus may have spoken too soon, however. The Court is still weighing two important cases testing whether Trump can block subpoenas about his finances issued by two House committees and by the New York City district attorney’s office. Those two cases — Trump v. Mazars USA and Trump v Vance — were argued on May 12 and are due to be decided by the end of the month.