Could This Supreme Court Restrain Trump Even if He Wanted?
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On April 8, 1952, President Harry S. Truman issued an executive order directing his secretary of commerce to take possession of most of the nation's steel mills. The United States was at war. The United Steelworkers of America threatened a strike. Truman wanted to secure steel production to support the war. Less than two months later, in Youngstown Steel v. Sawyer , the Supreme Court declared the president's order illegal and blocked the secretary from acting upon it. The power to sixteen properties to stop a labor strike was Congress' to give, not the president's to take. “The Founders of this Nation,” as the court wrote, “entrusted the lawmaking power to the Congress alone.” The president is to execute Congress' law, not craft his own law instead.
Is that principle still law? How do we see that it is?
Most think that the hard question in constitutional law is to determine what the Constitution means. In fact, the hardest question is whether and when the courts must stand up to governmental actors who are resisting the Constitution. Judges have long understood that courts can't right every wrong. The challenge is always to defend the Constitution while preserving the role of an independent court.
In 1993, the president of the Russian Constitutional Court, Valery Zorkin, discovered what happens when a court tries to do too much: After a series of rulings trying to restrict the power of President Boris Yeltsin, the Russian leader sent tanks to surround the court and shut it down. Even our own court, in its most famous early decision, Marbury v. Madison , dared not risk challenging a popular president directly: Though the court asserted that in principle it could order a secretary of state to obey the law and, in practice, it could declare a law of Congress unconstitutional, it exercised that power to strike a law that Congress would never reenact. Because it did so, it avoided giving the president the chance to ignore the court directly.
Not since Franklin Delano Roosevelt has America known a president to more aggressively press the limits of his power than Donald Trump. In practically every domain of executive power, President Trump has acted to transform the nature of the presidency itself. He has claimed that his duty to “take care that the laws be faithfully executed” includes the power to nullify a law (the TikTok ban), or effectively close a congressionally authorized department (the Department of Education). He has asserted an inherent right to call up the National Guard, beyond norms of federalism. He has insisted on the power to deport both citizens and noncitizens upon his mere assertion that the target presents a risk to national security. He has claimed emergency authority to set tariffs with foreign nations (while his family negotiates resort deals with the same governments)—including the power to impose a tariff simply because he disagrees with the nation's prosecution of an attempted insurrection by a former leader (Brazil's Jair Bolsonaro). He has used the full force of the federal government to retaliate against a university (my own) that refuses to yield to his extralegal demands to set university policy. He has retaliated against a state governor (Janet Mills from Maine) who refused to yield to his demand to follow his (as yet untested) theory of antidiscrimination law. He has removed any effective check within the Justice Department and executive agencies on the exercise of his power, both gutting the internal systems of constitutional review and firing independent inspectors general. He has exempted himself from gift bans and rules limiting his ability to benefit personally from his position as president, including sponsoring a crypto memecoin that has increased his personal net worth by billions and accepting a massive luxury jet from a foreign power. He has effectively extorted $1 billion in free legal services from law firms based on baseless legal claims and tens of millions of dollars from media companies based on entirely meritless lawsuits. There is no denying that the power of the presidency as Donald Trump is exercising it is far removed from anything any president before him has ever executed upon. He has in effect changed the nature of the presidency. Is that changing for him alone? Or has Trump effectively amended the Constitution? And if he has, then certainly, as Rachel Maddow has framed it , “The most important story of our time is this one: What is this country going to allow him to do?”
The Framers of our Constitution never expected the courts to be the ultimate check on presidential power. Congress was to be that check, and the people check it on them. Yet Congress has done nothing to block this president, and we are 18 months from the opportunity for a midterm election to check his power. If there is to be any limit in the interim, it will only come from courts and, ultimately, the Supreme Court.
Yet architecting that resistance will not be easy. Under the regular order of the Supreme Court, it is not even clear it is possible. The president has already generated more genuine disputes about his power than the court has space on its annual docket. But beyond one important exception ( Abrego Garcia v. Trump ), the Supreme Court has done little to slow its grasping of power, and it has, bizarrely, used its shadow docket to block lower courts that have tried to step into the breach (the recent Department of Education case).
Historians looking back at this moment will either mark it as the point at which the constitutional power of the president was effectively changed or when the federal courts successfully resisted that change. The obvious comparison to FDR will frame that review. Though in 1935 the court blocked many of FDR's most significant legislative initiatives, after the Democrats' landslide victories in 1936, the court backed down. That retreat effectively recognized that the constitutional scope of federal power had been substantially expanded from the lines the court had drawn just years before. Jurists have debated the legitimacy of that effective amendment for more than 85 years.
But Roosevelt had acted with the support of Congress, and after challenges, his actions were ratified in an election. This president, by contrast, acts alone. Congress has not supported through law the extraordinary executive power he now claims. And nothing in the 2024 election had anything to do with remaking the executive power of the president. Never before, save perhaps in the middle of war, have we seen a president so radically remake his own power, without any effort to amend the Constitution to support it or even an effort to secure Congress' approval. If Youngstown Steel was right when it held “the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker,” then this court's allowing of the president to shutter a Cabinet department or nullify a law seemingly refutes Youngstown ’s refutation.
“It is absurd to see a dictator,” Chief Justice Vinson wrote in his dissent in Youngstown Steel, “in a representative product of the sturdy democratic traditions of the Mississippi Valley.” Maybe that was so. But this president is not the product of any democratic tradition. Instead, he comes to power as a billionaire businessman obviously impatient with the ways of democratic governance.
And that raises a critical challenge for this court. The court has acted aggressively to cabin presidential power, to assure, as in Youngstown , that the president executes Congress' policy, not his policy alone. It took less than a year for the court to invoke its recently crafted “major questions doctrine” to block Joe Biden's student loan forgiveness plan. That was the fourth time that doctrine had been used by the court to restrict executive power during Biden's administration — the first happening just five months after he came to office.
Chief Justice John Roberts has long worried about the “integrity of the decisions of [the] court in the eyes of the country.” In arguing against a power to police partisan gerrymandering, Roberts speculated:
If you're the intelligent man on the street and the court issues a decision [favoring Democrats], … that person will say: “Well, why did the Democrats win? … It must be because the Supreme Court preferred the Democrats over the Republicans.”
Yet how is “the intelligent man” to understand the aggressive policing of Biden and the entirely passive response to Trump? There is a difference, of course: No one doubted that Biden would obey the court, while no one is confident that Trump would do the same. But that reason is invisible to “the intelligent man,” however real it may be. What is visible is a Republican court blocking the acts of a Democrat while allowing the effective rewriting of the Constitution by a Republican.
Which is why it is especially puzzling that the court would bend to deflect the help by lower courts in resolving the many questions Trump now presses. The public is already primed to believe it knows which side this court “prefers.” If the court is to uphold the Constitution it enforced against Biden, many judges would be better than just five.
None should minimize, however, how difficult the court's position is. Trump has triggered a constitutional moment. Whether this court — or any court — can resist such a president is not obvious. If it resists and is ignored, it will have weakened the institution for generations. But if it doesn't resist this remaking now, when could it? Will the court return us to the presidency that was when a Democrat comes to power? And how exactly could it do that, while preserving the “integrity of the decisions of [the] court in the eyes of the country”?
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