Courts are Checking Trump More Effectively than Many Think

There is a widespread perception – reinforced by a number of high-profile Supreme Court decisions – that the judiciary has been largely ineffective in curbing the second Trump Administration’s many illegal actions. In an insightful recent post, Georgetown law Professor Steve Vladeck (one of the nation’s leading experts on the Supreme Court and the federal judiciary), explains that courts have actually had more impact than many think:

There is, alas, plenty of Supreme Court-related news…. But I wanted to use this week’s “Long Read” to tell a slightly different story—about cases that aren’t making headlines, for instance, the ongoing litigation challenging President Trump’s executive order purporting to limit birthright citizenship. That order remains on hold—thanks to a series of rulings by lower courts after the Supreme Court’s 6-3 ruling on June 27. These lower-court rulings have flown under the radar—at least largely because the government has not sought emergency relief from the courts of appeals or the Supreme Court, nor has it refused to comply with them. For now, it is “taking the L.”

That’s an important story unto itself—not just in the birthright citizenship cases, but more generally. For all of the attention that is (understandably) being paid to the unprecedented number of cases the Trump administration is rushing to the Supreme Court (we’re up to 28), and to the Court’s (troubling) behavior in those cases, they represent only a small subset of the broader universe of legal challenges to Trump administration behavior. In the majority of cases in which the government is losing in the lower courts, it is (1) not seeking emergency or expedited intervention from above; and (2) otherwise complying with the adverse rulings while the cases move (very slowly) ahead.

Because this reality doesn’t make for quite as attractive headlines, it’s one to which too many folks are largely oblivious. That’s a problem worth fixing—not only because it’s important to tell both sides of the litigation story, but because including these cases paints a more complicated (and, in my view, far less nihilistic) picture of the role of the courts—and of the law, more generally—as a check on the Trump administration.

Vladeck goes on to explain that the birthright citizenship order – like a number of other Trump policies – remains blocked by lower courts, and that the administration often chooses not to appeal, or to do so only slowly. He also notes that this record shows that the Court’s ruling in Trump v. CASA, Inc., barring most universal injunctions, has so far not had the devastating effect some predicted, because lower courts have found other ways to impose broad injunctions constraining illegal policies:

[F]olks might recall the loud and sharp debate following on the heels of the Supreme Court’s ruling in CASA over just how much (or how little) of an impact that decision would have on the ability to challenge lawless (and allegedly lawless) behavior by the Trump administration. As I wrote at the time, the answer was always going to depend upon what happened both on remand in those three cases and elsewhere—and on how viable other means of seeking nationwide relief would be in challenges to Trump administration policies. It’s still early, but at least so far, the returns have largely borne out the views of those who did not think that CASA would be a cataclysm. To be clear, that doesn’t mean CASA was rightly decided (or even rightly framed, as Professor Jack Goldsmith has explained). And the Court may yet impose tighter limits on (1) nationwide class actions; (2) state standing; (3) what plaintiffs must show to demonstrate that a universal injunction is necessary to obtain “complete relief”; or (4) nationwide vacatur of rules under the Administrative Procedure Act—any of which will necessarily affect the ability of plaintiffs to bring nationwide challenges to federal policies. But at least for now, CASA’s effects have been decidedly modest—and felt most perhaps by lawyers, who have had to reconfigure many of the lawsuits against the Trump administration.

Vladeck opposes the ruling in CASA (as do I). But he’s right that its impact will depend on the scope and availability of alternative modes of relief. I made a similar point in my post criticizing CASA at the time it came down.

I think Vladeck’s other points here are mostly well-taken, as well. In assessing the impact of the judiciary we should look to the full range of cases, not just those that reach the Supreme Court on the “shadow” docket, as the latter are in some ways unrepresentative (Vladeck is a well-known longtime critic of the shadow docket). His analysis undercuts some left-wing narratives about the seeming ineffectiveness of the judiciary. And, as he notes, it also undercuts right-wing narratives to the effect that lower-court rulings against the administration are all indefensible “Lawfare” that will surely be overturned by the Supreme Court. If the latter were true, we would expect to see the Administration taking many more of these cases to the Supreme Court, at an accelerated pace.

That said, we should not assume that the judiciary has been completely effective, or even close to it. Some of the Supreme Court’s rulings blocking lower court decisions against Trump have been badly flawed and are likely to have harmful effects. The recent ruling on racial profiling in immigration enforcement is a notable example. And some illegal actions are hard to stop completely or swiftly enough through judicial rulings alone.

More generally, as I argued in an UnPopulist article published in June, the challenge posed by Trump should be met by a combination of litigation and political action. The two should be mutually reinforcing, and it is unlikely either can work completely alone. Vladeck’s piece shows the situation isn’t as bad as some think. But there is no cause for complacency.