SCOTUS on Notice and the Current Constitutional Crisis
Alexis de Tocqueville, that trenchant observer of America from the Old World, recognized, even as long ago as 1835, “[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question.” Today, as in the past, we are witnessing the truth to that statement.
Playing out before us, we are seeing the dismantling of government structures, norms, and a challenge to the law that exceeds in scope and speed anything that has occurred in the United States in our lifetimes. The firing of federal workers without regard to their functions, abilities, performance, or statutory protections is occurring so rapidly that even those conducting the program admit they have made mistakes by discharging workers safeguarding our nuclear stockpile or preparing for a potential bird flu pandemic without knowing how to rehire them.
Fever dreams of reversing the New Deal and the Great Society are toppling federal agencies or their statutory independence with the eagerness of mobs who pulled down and beheaded an equestrian statue of King George III on the evening the Continental Congress approved the Declaration of Independence. Visions of imperialistic expansion and abdication of our leadership role within what was once called the free world are sending allies scurrying to insulate themselves from the fallout and bringing cheer to our adversaries.
In his 1776 call to action, Common Sense, Thomas Paine confidently wrote, “In America, the law is king,” throwing off the yolk of the king is law and claiming the Enlightenment principle as foundation here that no one stands above the law. Will it remain true? Will our experiment in constitutional government survive when the constitutional blueprint is set aside in favor of plenary presidential prerogative? In the midst of the Korean War, the Supreme Court held that Harry Truman did not have the authority to put aside a strike and keep the steel mills running. Lawsuits challenge many of the new administration’s initiatives. Just Security has posted a litigation tracker listing 83 lawsuits filed a month into the new administration. At some point, several cases will arrive at the Supreme Court’s steps and require the Court to articulate the limits on presidential power.
Keep in mind that executive orders are not law, but presidential directives within the executive branch that exercise existing legal authority to implement the law. An executive order cannot, for example, override the Fourteenth Amendment’s conveyance of birthright citizenship, even though one of the first ones issued this year attempted to do just that. Nor can it go beyond what Congress has authorized, as Joe Biden’s first attempt at student loan forgiveness was struck down.
When the Nixon tapes case landed at the Supreme Court, the president’s criminal defense lawyer declared that Nixon would only obey a definitive ruling from the Court. The statement, letting the president choose defiance if he decided that the public interest favored his position, laid down a gauntlet of potential disobedience. As we now know, the justices worked hard to issue a unanimous ruling with no room for doubt, which resulted in the release of the tapes. Congressional support for Nixon evaporated in light of the tapes’ revelations, and Nixon resigned in the face of certain impeachment and conviction.
Some in the administration, Vice President Vance, OMB Director Vought, and the man with the unlimited portfolio, Elon Musk, have advocated ignoring the courts or threatening impeachment of judges who would restrain unlawful presidential actions. We have already seen defiance of the law in the first days of the administration. Congress enacted a ban on TikTok while owned by a Chinese company, setting a January 19, 2025 date for the ban to go into effect absent a sale. On January 17, 2025, the Supreme Court unanimously upheld the law, which put severe penalties on the app and those how make it available unless it went dark. The administration, however, has chosen not to enforce it because the president, a one-time supporter of the law, now dislikes it and asserts that he will broker a deal or a takeover.
Despite its supposed national security implications, the TikTok issue may seem of little moment. The Republic likely will not fall if the law is ignored, particularly when other issues seem more momentous. Yet, it is the canary in the coal mine. It tells us how easily duly enacted laws validated by the courts can be set aside by a president more committed to his program than his constitutional obligation to “take Care that the Laws be faithfully executed” and his oath to “preserve, protect and defend the Constitution of the United States.” In fact, the president has proudly posted a headline about refusing to comply with a court order unfreezing federal grants and stating that he can violate the law if his objective is to save the country. It is a statement that recalls the Vietnam War justification that the military had to destroy the village to save it.
The Supreme Court knows these challenges are coming and undoubtedly understand that validation of an unconstitutional or statutorily prohibited aggregation of power will only spawn even more aggressive claims that the unitary executive theory extends beyond control of the executive branch to control over the entire government. It also understands that a nuanced decision is equally ineffective in stopping extra-constitutional assertions of authority. At the same time, a muscular decision, along the lines of the 1952 Steel Seizure Case, may be ignored, just as the TikTok ban was ignored. And, if the Constitution and the courts erect mere parchment barriers, then what could stop Donald Trump from overriding the 22nd Amendment’s prohibition on running for a third term?
Appellate advocates have a role to play in preserving law as a barrier to authoritarianism. We must explain why these issues are important and why courts have the authority to restrain elected officials engaged in extralegal actions. Without public understanding and public support, the Supreme Court will falter or be nothing more than a quaint institution that has outlived its usefulness. It does not matter that one action or another does not personally affect us or most members of the public. As Sir Thomas More in “A Man for All Seasons” reminded us, you can cut down the laws to get after the Devil, but, then, “do you really think you could stand upright in the winds that would blow then?” If the constitutional principles of justice, liberty, and equality really reside in our hearts, we must use all of our legal skills to preserve it in the face of an onslaught that would render it an artifact of a world that will no longer exist.