Why John Roberts Might Not Constrain Trump
With congressional Republicans and executive-branch officials malleable to Trump’s demands, the most practical constraint on his actions may be the courts. Yet they look like a fragile barrier as well.
Across a wide array of issues, Trump has suffered several reversals at the district- and appellate-court levels. But for the biggest questions, all legal roads lead to the same place: a Supreme Court divided between five justices appointed by Republican presidents and four appointed by Democrats.
Kabaservice says he’s cautiously optimistic that the courts, including the Supreme Court, will limit Trump’s assertions of almost unlimited executive-branch power. Most judges appointed by Republican presidents, he argues, have traditionally been leery of excessive federal authority of any sort, and support the separation of powers as a means to check government overreach. Prominent conservative scholars who claim almost unfettered presidential authority—such as John Yoo, a law professor at UC Berkeley and a former attorney in the George W. Bush administration—are the exception, he believes.
“Most of the people who have come up [as Republican court appointees] would tend toward a Reaganite view of limited federal [authority] … rather than a Trumpian view of unlimited executive power,” he says.
But many other analysts say that, in practice, Republican appointees on the courts—particularly the Supreme Court—have already shown enormous deference to Trump’s claims of expansive authority. In 2018, the five Republican-appointed Supreme Court justices outvoted the others to uphold Trump’s ban on travel from mostly Muslim nations, for example. In more recent questioning, the same coalition appeared poised to allow Trump to end President Barack Obama’s Deferred Action for Childhood Arrivals program, which sheltered from deportation young people brought to the country illegally by their parents.
The biggest departure to this pattern of deference from the Court’s GOP majority came in June, when Roberts joined with the four Democratic appointees to block the administration’s effort to add a citizenship question to the 2020 census, which critics feared would depress minority participation.
Trump’s boundless instinct to press presidential boundaries virtually ensures that the Supreme Court will continue to face a steady flow of cases testing his claims. It already is facing cases involving Trump’s efforts to prevent both congressional investigators and New York criminal investigators from obtaining his tax returns, and his claims of “absolute immunity” from congressional testimony for current and former close aides appear headed toward the Court, too.
All this means that whether Trump stays in office for one more year or five, one of the key variables will be whether Roberts’s ruling in the census case was an exception or a signal of his determination to limit presidential authority. Most observers consider it unlikely that any of the four other Republican-appointed justices—including Trump’s two nominees—will break from the president on many, if any, big cases.