President Donald Trump has taken unprecedented steps to reshape the federal government. The Supreme Court likely will let him do it — at least in part.
Supreme Court and policy experts told NOTUS they don’t expect the court to OK all of Trump’s actions, with Chief Justice John Roberts and Associate Justice Amy Coney Barrett most likely to join their liberal counterparts on certain issues. But with about 80 active cases against Trump and other administration officials, experts say it’s likely the court will side with Trump on some cases involving executive power.
“If you place all the various independent agencies under the executive branch’s review, that would be, I think, seriously transformative,” said Josh Blackman, a constitutional law expert and adjunct scholar at the Cato Institute. “That’s been the law for almost 90 years, that these agencies can operate independent of the president. And I think that that might come to an end.”
The cases against Trump and his administration range from complaints about the Department of Government Efficiency making personnel decisions to filings arguing it is unconstitutional to gut the U.S. Agency for International Development. Some of his policies, such as limits to birthright citizenship, are already blocked in lower courts.
There’s clear legal precedent to some of these questions, including on birthright citizenship. But how courts will rule on it — or anything else — is an open question.
“If the birthright citizenship question had come before the Supreme Court 10 or 15 years ago, the answer would have been crystal clear how the court would rule,” said Adam Winkler, a UCLA School of Law professor and constitutional law expert. “However, I don’t think that we can take that for granted today.”
Although it’s impossible to know for certain how the high court will rule, the past can serve as a guide.
The three liberal justices are likely to side against Trump, as they did in many of the major cases during his first term. Justice Sonia Sotomayor recently spoke about the court’s role in obstructing executive overreach, though she did not name Trump directly: “Our founders were hell-bent on ensuring that we didn’t have a monarchy. … Court decisions stand whether one particular person chooses to abide by them or not.”
All six Republican justices, meanwhile, have sided with Trump at least some of the time. In a case against Trump in July, they unanimously said that former presidents have absolute immunity from criminal prosecution for any official, constitutional acts.
Trump appointed three of the justices, while two others — Clarence Thomas and Samuel Alito — have faced pressure to recuse themselves from Jan. 6-related cases.
“You would think that the Constitution pretty well defines that Congress is the one that taxes and spends and the administration is the one that executes on it,” Zach Moller, director of the economic program at the think tank Third Way, said. But, he added, “there’s multiple members of the Supreme Court who work for or who were appointed by the now, current president, and we’ll see how that goes.”
But that doesn’t mean Trump’s team won’t meet resistance, and legal experts agreed that Roberts and Coney Barrett are the two to watch.
“They are not really swing votes in the traditional understanding, but they seem most likely among the conservatives to deviate from Trump,” Winkler said.
Coney Barrett’s stance on the presidential immunity case last year was narrower than the five other Republican justices’ takes. In her partly concurring opinion, Barrett wrote that “the Constitution does not vest every exercise of executive power in the President’s sole discretion.”
“Congress has concurrent authority over many government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute,” Barrett wrote in her opinion.
Roberts has also emphasized his support for congressional power, including in 1985 when he was a lawyer in Ronald Reagan’s White House. Roberts wrote in a memo to then-White House counsel Fred F. Fielding that impoundment, or unilateral presidential decisions about funding, should not be touted as a “viable budget planning option.”
Experts have pointed to the memo as a signal that if any cases about Congress’ power of the purse make their way to the court, Roberts could stand in the way of a Trump success.
There’s also the question of Brett Kavanaugh. When Kavanaugh served as a federal judge in 2013, he issued an opinion on a case about the Nuclear Regulatory Commission in which he highlighted the “constitutional respect owed to Congress,” underscoring a belief that the president is obligated to carry out Congress’ mandates and cannot refuse to do so because of policy disagreements. While the case didn’t directly evaluate congressionally dictated appropriations, it’s reminiscent of multiple cases related to executive overreach and funding pauses that are currently active against Trump.
Previous Supreme Court cases could also provide clues about how funding and executive overreach cases against Trump may play out.
The Supreme Court in 1975 unanimously ruled against then-President Richard Nixon after he attempted to impound funds that Congress appropriated for a water pollution control program. The majority opinion from the justices said that the president and other executive branch officials had “no authority to allot less than the full amounts authorized to be appropriated.”
While none of the justices then on the court still serve, that case — plus the Impoundment Control Act of 1974, passed shortly before the case was argued — have been often cited in recent weeks by experts as a sign that there’s an easy constitutional counterargument to Trump’s spending freezes.
Stephen Vladeck, an expert on the Supreme Court and professor at the Georgetown University Law Center, wrote in a post that it’s unlikely that any of the Republican justices will back Trump’s authority to make unilateral decisions on spending or government personnel.
“It’s one thing to believe that the President must have unitary control of the executive branch,” Vladeck wrote, referencing a theory multiple justices have evidently subscribed to, which posits that the president wields sole authority over all others in the executive branch. “It’s quite another to believe that such control extends to the right to refuse to spend any and all money Congress appropriates.”
And though the justices have previously sided with Trump, Winkler told NOTUS they’re likely to draw a line somewhere.
“The court is very conservative, but sometimes the court doesn’t just go along with whatever President Trump wants,” he said.
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Casey Murray and Shifra Dayak are NOTUS reporters and Allbritton Journalism Institute fellows.