WASHINGTON — President Donald Trump will need the Supreme Court, with three justices he appointed, to enable the most aggressive of the many actions he has taken in just the first few weeks of his second White House term.
But even a conservative majority with a robust view of presidential power might balk at some of what the president wants to do.
The court gave Trump major victories last year that helped clear away potential obstacles to his reelection, postponing his criminal trial in Washington, D.C., then affording immunity from prosecution for official actions. But Trump’s first term was marked by significant defeats — as well as some wins — at the court.
“It will be an extraordinary test for the Roberts Court whether it’s willing to stand up for constitutional principles it has long embraced,” said Michael Waldman, the president of New York University’s Brennan Center and the author of a book that is critical of the court. “Some of the things we have seen are so blatantly unconstitutional that I am confident the court will stand up. Other things that align with the accumulation of the power of the presidency make me very nervous.”
There’s no shortage of issues that could find a path to the nation’s highest court. Lower courts already have paused orders on birthright citizenship, a freeze on government grants and loans, and a buyout order for federal workers.
Other lawsuits have been filed over restrictions on transgender people, limits on asylum-seekers, efforts to shutter USAID, Elon Musk and his team’s access to sensitive data and the firing of officials at independent federal agencies.
Trump met with mixed success at the court in his first term. By a 5-4 vote, the justices upheld his ban on travel to the U.S. from several mostly Muslim countries, but only after courts had blocked the first two versions of it.
The same five conservative justices backed Trump’s firing of the head of the Consumer Finance Protection Bureau and cleared the way for the administration to tap billions of dollars in Pentagon funds to build sections of a border wall with Mexico, while a lawsuit over the money continued.
At the same time, Chief Justice John Roberts joined with the court’s then-four justice liberal bloc to prevent Trump from ending the DACA program for immigrants who were brought here as children. The same five-justice majority also stopped the administration from including a question about citizenship on the 2020 census.
Roberts also bluntly rebuked Trump for denouncing a judge who rejected his migrant asylum policy as an “Obama judge.”
One big difference from the first Trump presidency is that there are just three liberal justices, after Ruth Bader Ginsburg’s death in September 2020 allowed Trump to appoint a third justice, Amy Coney Barrett, in the final months of his term. She joined earlier Trump appointees, Neil Gorsuch and Brett Kavanaugh.
The issue that might be first in line this time is Trump’s order ending birthright citizenship for the children of parents who are in the U.S. illegally. The administration already has indicated it will appeal a judge’s ruling that has so far blocked it.
Depending on how quickly the federal appeals court in San Francisco acts, an emergency appeal to the Supreme Court could arrive within weeks if Trump’s Justice Department wants to press courts to allow the order to take effect while the legal fight continues.
While there is some support in legal circles for what Trump is trying to do, the more broadly held view among both liberal and conservative scholars is that this is a fight the president won’t win.
“I’m exceedingly skeptical about there being any votes for the birthright citizenship executive order as written,” said Jonathan Adler, a law professor at Case Western Reserve University in Cleveland who describes himself as right-of-center.
Trump’s now-paused effort to freeze federal spending and his call to shut down USAID also might meet resistance, even in front of the conservative court, though more modest reductions could fare better.
“The court will be more skeptical, especially if the administration tries to completely unwind an agency that has been created by statute,” said Villanova University law professor Michael Moreland, who worked in the George W. Bush White House.
The history of the travel ban, which the court eventually upheld after it was revised twice, is instructive, Adler said.
“Make the broad announcement that’s a bit blunderbuss, a bit aggressive, that pushed the envelope. Then settle back to a more defensible space after pushback. It results in something more modest, but still dramatic,” he said.
The Biden administration figured out a legally defensible way not to spend border wall money that Congress appropriated. “There’s a lot more play in the joints than people recognize,” Adler said.
Trump is on firmer ground in his firing of National Labor Relations Board member Gynne A. Wilcox and Equal Employment Opportunity Commission members Charlotte Burrows and Jocelyn Samuels, all Democrats.
Wilcox already has sued, arguing that federal law protects her from being arbitrarily dismissed.
But even her lawyers acknowledged in their filing that her lawsuit could tee up a Supreme Court challenge to a 90-year-old precedent that Roberts and the other conservatives already have narrowed. The case known as Humphrey’s Executor held that President Franklin Roosevelt could not arbitrarily fire a member of the Federal Trade Commission, a ruling that applied to other independent federal agencies as well.
That ruling, though, has run into a legal theory embraced by conservatives that says the Constitution gives all executive power to the president, the one person who is accountable to the entire American electorate.
In the CFPB case in 2020, Roberts brushed aside Justice Elena Kagan’s complaint that the court was removing “a measure of independence from political pressure.”
Roberts left Humphrey’s Executor standing, but diminished, even as Justice Clarence Thomas and Gorsuch wrote that they would have gone ahead and overruled it.
“If I had to speculate, I’d say it would be — if not outright overruled — at least severely constrained,” Moreland said.
