Trump pits the Supreme Court against its own precedents
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President Trump needs the Supreme Court to validate some of his most sweeping exercises of presidential power — and to stretch or outright overturn some of its own precedents in order to do so.
The big picture: The rulings standing in Trump's way are conservative ones. The right's long, successful campaign to curtail presidents' domestic powers is on a collision course with a Republican president who's shattering historical precedents at every turn.
- A ruling that stopped FDR from grabbing more power from Congress at the height of the New Deal is now on the chopping block — because Trump wants to do the same thing FDR was trying to do.
- Trump's Justice Department is also trying to convince the high court's six conservative justices that the principles they invoked to block President Biden's biggest executive actions do not apply to Trump's.
Driving the news: The Supreme Court is set to hear three big Trump cases in its new term, which begins next week — challenges to his tariffs, his firing of a Federal Trade Commission member and his attempt to fire Fed governor Lisa Cook.
- Trump has racked up a string of major victories on the court's "shadow docket," where the justices have let his policies remain in place without deciding big, underlying legal or constitutional questions.
- But few of his second-term priorities have gotten all the way to rulings on their legal merits, until now.
Tariffs
A federal appeals court ruled in August that Trump's tariffs run afoul of the "major questions doctrine" — the same legal theory the Supreme Court relied on to block some of Biden's most prominent executive actions.
- The Justice Department's tariffs defense "resembles the argument expressly rejected by the Supreme Court" when it shot down Biden's attempt to forgive student loans, the appeals court wrote.
How it works: The Supreme Court has said the executive branch cannot enact "major" policies — defined as programs that have "vast economic and political significance" — without explicit authorization from Congress.
- Because Trump's tariffs apply to almost every country, are indefinite, and can be as high or low as Trump wants them to be, they're significant enough to trigger the major questions doctrine, companies challenging the tariffs argue.
- The major questions doctrine doomed Biden's attempts to impose an eviction moratorium during COVID — in part, the Supreme Court said, because it would have carried some $50 billion in economic impact. And if that was enough to qualify as a "major question," the $500 billion price tag for student-loan forgiveness definitely qualified, the court said in that case.
- Mainstream estimates put the economic impact of Trump's tariffs at roughly five times higher, lower court judges hearing that dispute noted.
The other side: The Justice Department argues that the major questions doctrine shouldn't apply to foreign policy, where Congress has given the president wider latitude to operate independently.
What's next: The Supreme Court will hear the challenge to Trump's tariffs on an accelerated timeline, with oral arguments set for Nov. 5.
Firing agency leaders
The 6-3 court repeatedly has sided with Trump in his efforts to fire federal workers — and signaled it may want to go as far as to overturn the precedent that protects the leaders of independent agencies.
Context: When Congress created the Federal Trade Commission, it stipulated that the president could fire FTC commissioners only for cause, not simply because of their policy positions.
- The Supreme Court, in a 1935 case known as Humphrey's Executor, said it was OK for Congress to impose those restrictions, and the president needed to abide by them. The dispute arose when FDR tried to fire an FTC commissioner without cause.
Trump fired an FTC commissioner, Rebecca Slaughter, without outlining any cause. She sued, citing Humphrey's Executor.
- The court's conservative majority allowed her firing to take effect, and put a case on the docket asking whether to overturn Humphrey's Executor.
- Conservatives have had the case in their sights for a while, arguing that it violates the Constitution's separation of powers for Congress to tie the president's hands.
- They also argue that independent agencies like the FTC are more political now than they were at the time of Humphrey's Executor.
What we're watching: Lawyers representing fired appointees have argued that the end of Humphrey's Executor would open the door for Trump to more freely fire Fed governors, who also can be fired only for cause — a move that would have much wider ripple effects than firing an FTC commissioner.
- The Supreme Court waved off those concerns in a recent order, writing that the Fed is "a uniquely structured, quasi-private entity."
But Trump has already tried to fire one Fed governor, Lisa Cook. The court temporarily blocked that move, and will hear oral arguments in January to decide her ultimate fate.
