By Ella Lee and Zach Schonfeld | Wednesday, April 9 |
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By Zach Schonfeld and Ella Lee Wednesday, April 9 |
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© (AP Photo/Alex Brandon) |
Two justices control Trump's Supreme Court fate |
The Supreme Court has handed President Trump a mix of wins and losses when it comes to legal challenges to his exhaustive second-term agenda, with two of the justices holding all the cards. Chief Justice John Roberts and Justice Amy Coney Barrett are emerging as the key to Trump's success as a pileup of applications land at the justices' feet. Though the two justices often vote together, their alliance has come into greater focus as the high court's emergency docket becomes the place where Trump's agenda lives or dies. When the three liberal justices persuade both Roberts and Barrett to join them, the administration loses. That's what happened when the court declined the administration's bid to freeze $2 billion in foreign aid payments. But Roberts and Barrett haven't always been consistent on whether they join the conservative majority or side with the court's liberal dissenters in Trump cases. On Monday night, only Barrett joined the three liberal justices in dissenting from the Supreme Court's decision to vacate an order temporarily blocking Trump from invoking the Alien Enemies Act to deport Venezuelans. Roberts, in siding with conservatives, provided the administration with the crucial fifth vote to reach a majority — and give the White House a victory. Last Friday, it was reversed. Barrett provided the fifth conservative vote to allow officials to keep frozen $65 million in teacher development grants over concerns they promoted diversity, equity and inclusion, while Roberts, in siding with the three liberals, crossed over to dissent. And in the administration's first Supreme Court application, which concerned Trump's firing of an independent agency leader, the duo similarly found themselves at the center of it all. Two liberal justices — Sonia Sotomayor and Ketanji Brown Jackson — publicly dissented while two conservatives – Neil Gorsuch and Samuel Alito – were with him. But the court instead went for a middle ground supported by both Roberts and Barrett. Despite the litany of 5-4 divisions, that's not always how the court comes down. On Tuesday, seven justices apparently sided with the administration to block the reinstatement of thousands of federal probationary workers. Only Sotomayor and Jackson publicly dissented. And it's not over yet. Trump's expansive agenda has been challenged in courts at nearly every turn since the moment he was sworn-in, resulting in more than 100 lawsuits. Any number of those cases are destined for the high court, putting the durability of Trump's executive actions largely in the justices' hands. Roberts and Barrett have certainly handed Trump decisive victories before (does presidential immunity ring a bell?), but their decisions on his policies that have hit the emergency docket so far have signaled a more nuanced approach. Consider the court's ruling Monday on the Venezuelan deportations. On its face, the order gave Trump exactly what he asked for: It enabled the administration to resume removals under wartime powers and directed that any challenges to those efforts be brought in Texas, where migrants are being detained. However, it came with a catch — the Venezuelans they seek to deport must now be given adequate notice so they can challenge their removals, dealing a blow to the administration's speedy deportations of migrants without hearings. "The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs," the court wrote in an unsigned order. Roberts and Barrett's union goes deeper than the Trump docket. Many legal observers view the pair as being more "institutionalist" than some of their conservative colleagues, meaning that they look beyond the legal briefs to consider the role of the Supreme Court itself. But oftentimes, the duo is seen as a trio alongside Justice Brett Kavanaugh. You'll hear believers refer to the dynamic as a "3-3-3 court." So far, however, Kavanaugh hasn't crossed over on matters involving the president's sweeping agenda. Will that change? |
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Navarro course correction; Immigration roundup |
DOJ signals course correction in Navarro criminal case |
Trump trade adviser Peter Navarro has taken a beating in the press lately, as Elon Musk and other detractors of the controversial tariff plan he helped design make their grievances of him known. But in court filings Friday, the Justice Department (DOJ) signaled a win for Navarro is right around the corner as it indicated it might back — or, at least, stop opposing — his appeal of his criminal conviction. You might recall that Navarro, a White House trade advisor in Trump's first and second terms, was in prison less than a year ago. He was convicted of evading a congressional subpoena from the House Jan. 6 committee and served four months last year as punishment. The same day he was released, he took the stage at the Republican National Convention, and since then, all's been hunky-dory. Now, Trump's DOJ is looking to "reexamine" its position on the executive privilege claims Navarro invoked in hoping to stave off a conviction. It asked to delay arguments in Navarro's appeal until this fall while it considers the matter, which Navarro didn't oppose. The appeals court agreed to push it back. Let's rewind the tape to August 2023, just before Navarro stood trial on two counts stemming from his failure to appear for a deposition before the House panel and for failing to produce documents. Navarro argued to U.S. District Judge Amit Mehta that it was "clear" Trump had invoked executive privilege — the executive branch's power to withhold some confidential communication from courts and Congress — to stop him from testifying before the committee. However, he failed to produce direct evidence to back up that claim, and critically, Trump himself has declined to weigh in on Navarro's recollection. Mehta, an appointee of former President Obama, found that Navarro failed to prove Trump ever invoked executive privilege, calling his arguments "pretty weak sauce" and blocking him from using it as part of his defense. Biden's DOJ staunchly opposed the notion that executive privilege was invoked. But if Trump's DOJ switches positions, Navarro's executive privilege claims might be bound for the Supreme Court and his conviction on the ropes. That's exactly what he wanted from the start. "It's crying out for the Supreme Court to do this," Navarro said the day he reported to prison. |
An accidental landmark decision? |
Legal scholars are buzzing about whether the Supreme Court inadvertently gave a seismic boost to the so-called "administrative state" when it upheld the Biden administration's "ghost gun" crackdown. Not for what the court held, but for how it got there. In the 7-2 majority opinion, Justice Neil Gorsuch upheld the 2022 Bureau of Alcohol, Tobacco Firearms and Explosives (ATF) rule by applying an incredibly deferential standard. He did so by describing the lawsuit as a "facial" challenge, meaning one that contends the rule is invalid across the board, rather than a specific instance. Gorsuch then applied the framework laid out in the Supreme Court's 1987 case, United States v. Salerno, which requires a plaintiff bringing a facial challenge to establish that "no set of circumstances" exists under which the challenged provision is valid. The Salerno test has been employed when a statute is being challenged as unconstitutional. But the ghost guns case was a regulation, not a statute, and the lawsuit didn't implicate the Second Amendment or any other part of the Constitution. Instead, the plaintiffs sued under the Administrative Procedure Act (APA), which allows courts to set aside regulations that exceed an agency's statutory authority. Extending the test to APA suits could make lawsuits hoping to topple regulations across the federal bureaucracy more difficult. "This extension of Salerno would represent a huge boon for the administrative state," Justice Samuel Alito wrote in dissent. It remains unclear if the approach will gain traction. The majority made clear they were leaving for another day whether the Salerno test should definitely apply in APA cases But the decision in the ghost guns case, Bondi v. VanDerStok, has still left many conservative legal scholars worried, and even confused, given that the decision came on the heels of the Supreme Court's major claw back of agency power last term by overturning Chevron deference. And the ghost gun decision was authored by Gorsuch, who is no fan of a booning administrative state. "For the life of me, I cannot fathom why VanDerStok came out the way it did," noted conservative legal scholar Josh Blackman, who represented some of the ghost gun regulation challengers, wrote in a blog post for the The Volokh Conspiracy. |
Big deportation case breakdown |
The Trump administration's efforts to deport foreign students who have voiced support for the pro-Palestinian movement has sparked a patchwork of legal challenges flooding courts across the country. The administration says it has revoked at least 300 foreign students' visas amid its immigration crackdown. Many of the revocations rely on a provision of federal immigration law allowing deportations if the secretary of State reasonably believes the person's continued presence in the United States could pose "serious adverse foreign policy consequences." "We do it every day," Secretary of State Marco Rubio said last month. "Every time I find one of these lunatics, I take away their visa." Here are key cases to watch: Mahmoud Khalil: Pro-Palestinian activist who led protests at Columbia In one of the highest-profile cases, the administration is attempting to deport Khalil, who played a prominent role in the demonstrations at Columbia University last year that dominated headlines. Immigration authorities arrested Khalil on March 8, and he is currently being detained in Louisiana. Khalil appeared before an immigration judge Tuesday, who is expected to rule later this week on whether his detention can continue. Meanwhile, a federal district judge has allowed his attorneys to press ahead in court in New Jersey, but the judge hasn't yet ruled on the legality of Khalil's detention. Rumeysa Ozturk: Tufts graduate student Ozturk was arrested on March 25 by six plainclothes agents while walking home in Somerville, Mass. She was part of a quadruple-bylined op-ed published in the Tufts University student newspaper last year that criticized the school's response to the war in Gaza and called for divestment from Israel. A judge has temporarily prevented authorities from removing Ozturk from the country until her legal claims are addressed. Her case has been moved to Vermont, where a judge is receiving additional briefing and signaling he may hold a hearing early next week. Yunseo Chung: Columbia junior Unlike Khalil and Ozturk, Chung hasn't been arrested. The 21-year-old Columbia student, who also participated in pro-Palestine demonstrations, sued the Trump administration after Immigration and Customs Enforcement agents sought to detain her. A legal permanent resident who moved to America as a child, Chung said the government sought her deportation over "protected free speech." A federal judge granted a temporary restraining order blocking federal agents from detaining her. Momodou Taal: Cornell doctoral student Officials similarly looked to revoke the student visa of Taal, a Cornell University doctoral candidate in Africana Studies who participated in pro-Palestinian demonstrations. After a judge rejected Taal's bid to block two of Trump's executive orders the administration is using to crackdown on foreign students, he said he was self-deporting. "Today I took the decision to leave the United States, free and with my head held high," Taal wrote on X. Badar Khan Suri: Georgetown professor Suri, an Indian national and postdoctoral scholar teaching at Georgetown University, was detained by the Trump administration last month after supporting Palestinian rights and criticizing Israel. A federal judge blocked the government from deporting him "until the court issues a contrary order" and scheduled a hearing for next month over motions to return Suri to the area and release him on bond, in addition to government motions to transfer and dismiss the professor's suit. |
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Cases the Supreme Court is taking up — or passing on — this term. |
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| In: Right to counsel, restitution |
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The court took up two new cases for the fall. In Villarreal v. Texas, the court agreed to hear an appeal brought by David Villarreal, who was convicted of fatally stabbing his boyfriend, to decide whether Villarreal's Sixth Amendment right to counsel was violated during his trial. (Note from last week's edition: This is not the same David Villarreal who was convicted of killing five gay men. Both defendants have the same first and last name.) When the court took a 24-hour pause in the middle of Villarreal's testimony, the trial judge prohibited Villarreal from discussing what he would say with his lawyer. The justices will decide whether that violated his Sixth Amendment right to counsel. It has been a few weeks since we talked about the second case the court took up, Ellingburg v. United States. Holsey Ellingburg, who was convicted in connection with a Georgia bank robbery, was ordered to pay restitution (and serve a nearly 27-year prison sentence). At the time, federal law required Ellingburg to make restitution payments for 20 years. But Congress later enacted legislation requiring defendants to make payments for longer if they are still in prison. The justices agreed to hear Ellingburg's appeal to decide whether requiring him to make payments beyond the 20-year timeline violates the Constitution's Ex Post Facto Clause, which prevents the government from applying criminal statutes retroactively. Ellingburg is represented by Lisa Blatt, who has an 89 percent win rate in the more than 50 cases she has argued before the Supreme Court (she is also arguably the most humorous advocate at the court). |
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| Out: New York gun law challenge |
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In Antonyuk v. James, the justices turned away a challenge to New York's law that requires individuals to show "good moral character" to carry a firearm in public and bans guns from various "sensitive places." In 2022, the Supreme Court's conservative majority created a new legal test that expanded gun rights. But since the court clarified that test in a case last term, the justices have declined to return to the Second Amendment by declining to take up a series of appeals implicating gun control measures. Interestingly, the court has been repeatedly relisting petitions that challenge Rhode Island's high-capacity magazine ban and Maryland's semi-automatic weapon ban. Why did the court immediately toss Antonyuk while they continue to hold those two other cases? It's possible a justice in those cases is working on a written dissent, but only time will tell. |
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Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: |
- A three-judge panel on D.C.'s federal appeals court will hear arguments over whether to indefinitely pause an order preventing the Consumer Financial Protection Bureau from being dismantled as a lawsuit moves forward.
- A federal judge in Washington state will hold a show cause hearing over the State Department's intention to re-suspend U.S. Refugee Admissions Program cooperative agreements.
- A New York federal judge will hold a pretrial conference in a challenge to the Trump administration's effort to slash New York's congestion pricing program.
- A Washington, D.C., federal judge will hold a preliminary injunction hearing in national Democrats' challenge to Trump's executive order aiming to expand the White House's control over various independent regulatory agencies.
- A federal judge in New York City will consider the American Civil Liberties Union's request to block the administration from deporting migrants under the Alien Enemies Act, the group's latest attempt after the Supreme Court ruled in favor of Trump earlier this week.
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- A federal judge in Washington, D.C., will hold a status conference in a lawsuit challenging the Trump administration's use of the encrypted messenger Signal to discuss a strike on the Houthis in Yemen.
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- Meta Platforms, the parent company of Facebook and Instagram, is set to stand trial in a Federal Trade Commission antitrust lawsuit.
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- A Massachusetts federal judge will hold a temporary restraining order hearing in Democratic state attorneys general's challenge of cuts to 'indirect cost" reimbursements for National Institutes of Health grants nationwide.
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We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. |
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