In a showdown between the President of the United States and the United States Supreme Court, the Court will prevail. In the U.S. system of government, the Constitution is the ultimate authority. It has been settled law for over 220 years that the Supreme Court has the final say on the law. To be clear, the Supreme Court says what the law is.
Over the course of American history, Presidents have not infrequently butted heads with the Supreme Court. President Andrew Jackson was often at odds with the Court. In the Supreme Court case Worcester v. Georgia, concerning the property rights of the Cherokee Nation, Jackson ignored a Supreme Court decision ruling that the state of Georgia could not seize the lands of the Native American Cherokee Nation. The Cherokee lands were taken. But in that same year, President Jackson embraced the Supreme Court’s authority by issuing a proclamation of the Supreme Court’s ultimate power to decide constitutional questions and emphasizing that its decisions had to be obeyed. Jackson understood that his executive power was stronger when he obeyed the rule of law.
During the Great Depression, President Franklin Delano Roosevelt battled a conservative Supreme Court as he attempted to remake the economy. He became so frustrated with the Court that he proposed legislation that would enable him to increase the size of the Court so that he could pack the Court with judges who would support his efforts to extensively regulate the U.S. economy. This was a step too far. Congress and the people said “no.”
But after the Court-packing attempt, the Court sensed the shift in political winds. After all, Roosevelt had won a landslide victory in 1936. The Court tacked to accommodate Roosevelt’s goals. This was the appropriate course of action; the Constitution is a living document.
Less than two decades later, during the Korean War, President Harry Truman used his expansive powers as Commander in Chief to deploy U.S. military forces to counter efforts by North Korea, Russia, and China to take over South Korea. The Supreme Court balked when Truman, under Executive Order 10340, “seized” the nation’s steel industry in order to prevent a strike by steelworkers from shutting steel production in a time of war. The court in Youngstown Sheet & Tube Co. v Sawyer ruled that Truman’s seizure was unconstitutional, as he lacked Constitutional or legislative authority to seize the mills. The Constitution and the rule of law held. Truman stood down.
Today, President Trump is pushing an expansive view of the authority of the presidency. He is reordering U.S. trade policy. And he is aggressively pursuing his perceived mandate to end illegal immigration and to deport summarily without judicial review, apparently illegal immigrants. Trump blusters about impeaching federal judges who thwart his will. But with a sharply divided Congress, impeachment is a hollow threat.
Perhaps Trump is trying to bully the Court into accepting his view of a powerful executive branch?
History says that this will fail. Indeed, Trump’s tactics arguably could have the opposite effect on the Supreme Court and the federal judiciary. The federal courts could push back. Federal justices and judges will assert their Constitutional authority under Article III of the Constitution to say what the law is. They will rule against Trump. Then the Supreme Court might very well slow walk appeals of decisions by lower federal courts. Conflicts which could be resolved in weeks by the Court’s use of the so called ‘shadow docket’ or ‘emergency docket’ which enables very expedited appeals will not happen. The Court will say “no” to emergency appeals.
The Court will assert its judicial authority and allow the normal appeals process to unfold. This can take years. Trump knows that his time in office ends on January 20, 2029. He will not want his agenda to be tied in legal knots for two or more years. Trump also knows that ignoring federal judicial decisions undermines his own authority which after all is based on the Constitution.
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Trump’s statements and actions demonstrate that he is often bluffing. Trump may bluster, but he will obey the Court. Like President Andrew Jackson of long ago, he knows that he has more authority when he obeys the Court and the rule of law. In the end, the coercive elements of executive power are bound to the Constitution. They will not follow unlawful orders.
James Rogan is a former U.S. foreign service officer who later worked in finance and law for 30 years. He writes a daily note on the markets, politics, and society. He can be reached at [email protected].
