Trump v. SCOTUS: From a soft-coup to a hard-coup?

In a February 7th post on Substack (Administrative state or autocratic state), I alluded briefly to a scenario that no one wants to contemplate – namely, what happens if the Supreme Court rules against one or more of the Trump administration’s Executive Orders and Trump simply ignores them? The constitution provides for an impeachment process in the House and removal from office by a 2/3 vote in the Senate, but we have been down that path twice before and it did not have any effect (in fact, one could argue that it emboldened Trump). Moreover, impeachment in the House would require Speaker Mike Johnson to allow for a vote to come to the floor and for at least a few Republican members along with all of the Democrats to vote in favor of an article of impeachment. That seems vanishingly unlikely in the current political climate.

The potential clash between the Supreme Court and President Trump is not far-fetched because SCOTUS laid the groundwork for its own irrelevance by rejecting portions of Special Counsel Jack Smith’s two indictments of Trump – one for mishandling government documents (some of them labeled Top Secret), which he refused to admit were stored in various insecure locations at his Mar-a-Lago estate, and the other for encouraging the January 6, 2021 riot at the Capitol and a fake electors scheme that interfered with the peaceful transfer of power to newly elected President Joe Biden.

Jeffrey Toobin’s 2007 book “The Nine: Inside the Secret World of the Supreme Court” put to rest the fiction that SCOTUS is an apolitical branch of our government, especially in his detailed summary of how they handled the vote count in Florida in the 2000 presidential contest between Vice President Al Gore and Governor of Texas George W. Bush. But the most compelling example of the politicization of the Supreme Court is the July 1, 2024 ruling (https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf) that granted any president the green light to do pretty much anything as long as he could plausibly claim that his actions were in the best interests of the country and fell within the outer perimeter of executive authority. Here is their summary statement in the 6-3 majority opinion:

“The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”

In the January 9, 2024 lower court hearing about presidential immunity, Judge Florence Pan asked whether a president could order Seal Team-6 to murder his opponent, and former President Trump’s attorney John Sauer said “yes” as long as the presidential order was within his powers, which it clearly is as commander in chief. Shockingly, the majority of the justices agreed in their July 1, 2024 opinion and sent the Jack Smith indictments back to the lower court for revision and clarification to define the scope of a president’s “official acts.” That lower court clarification never happened because the Trump legal team effectively “ran out the clock”, and once Trump won the election last November all of the cases against him were dropped.

Of course, the Legislative branch could decide that ordering the murder of a political opponent is a “high crime or misdemeanor” and impeach and remove the president from office. But the SCOTUS ruling on immunity prevents the president from being prosecuted after he leaves office. So ironically, the dictum that “no one is above the law” would be thrown out the window because conviction by the Senate only removes the president from office, it does not put him in jail for ordering a government agent to commit a politically motivated murder of a U.S. citizen. And as Politico reporters Kelsey Griffin, Erica Orden, and Lara Seligman pointed out in their analysis of the SCOTUS ruling (7/2/2024):

“The biggest challenge for a president ordering an assassination would be finding military personnel willing to carry out the order, legal experts explained. While the president himself would have the protection of immunity, others involved would remain vulnerable to prosecution because the Supreme Court’s decision doesn’t make the underlying act legal.”

The flaw in that argument is that the president who orders the hit also has the power to pardon. And as we’ve seen, President Trump is perfectly willing to pardon violent criminals who attacked the Capitol on January 6, despite inflicting physical harm and even death on police officers, and despite being indicted by legally constituted grand juries, convicted by unanimous agreement of 12 citizens during their criminal trials, and sentenced to prison by judges, many of whom were appointed by Republican presidents including President Trump.

Adding fuel to this potential clash between Trump and SCOTUS is a series of comments by Vice President Vance (see yesterday’s NY Times article by Charlie Savage and Minho Kim) in which he explicitly stated in 2021 that “when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’”. And as recently as yesterday Vance posted on X this warning: “Judges aren't allowed to control the executive's legitimate power.” Of course, this argument hinges on the interpretation of the word “legitimate”.

So let’s return to the current spate of Executive Orders signed by President Trump in the past 22 days. Which ones are likely to be taken up by SCOTUS? You can follow the long list of lawsuits filed against the Trump administration here:

https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/

I am not a lawyer or legal historian, but my guess is that Birthright Citizenship will not be taken up by SCOTUS, but rather they will let the lower court ruling stand (which was pretty scathing and authored by a Reagan appointed judge). Will Trump ignore it and deny rights to children born to illegal immigrants? I don’t think so because it has no upside – people don’t like punishing innocent children and it is difficult to lump together a convicted drug dealer with a second grader in Moline Illinois. Would ICE agents actually bar that second grader from attending elementary school like Governor George Wallace did with African American students at the University of Alabama in 1963? Perhaps, but not likely.

I also don’t think that SCOTUS will take up the case about cuts to Federal grants, especially the reduction of indirect costs that pay for the infrastructure that supports biomedical research at NIH and science and technology research at NSF. I think it’s more likely that the temporary injunction will be extended and senators and congresspersons in Red states will provide so much pressure against these cuts (because the economies in Red states) that the Trump administration will declare victory and move on to more important legal battles (just like they did with tariffs on Canada and Mexico).

For similar reasons, the purge at DOJ, the FBI, and the CIA has already done its job, which was to make every lawyer, agent, and analyst think twice about pursuing a case that involves anyone in or associated with the Executive branch. Trump cannot afford to fire thousands of FBI agents and CIA analysts because they actually keep us safe. He certainly does not want more terrorist attacks in the country under his watch. And I expect SCOTUS will also let stand lower court rulings if they rescind the executive order on Schedule F, which reclassifies thousands of civil servants as political appointments, allowing the agency directors to fire key high-level career employees who fail to follow President Trump’s wishes. Civil Service law is pretty clear and was reaffirmed in 1978. But again, the goal was to threaten government employees to toe the line, and that has already been achieved (as indicated by any mention of DEI being stripped from agency websites).

I think there are two executive orders that will require action by SCOTUS and that will conflict with President Trump’s goals. The first is the elimination or defunding of government agencies (e.g., USAID) that were created by Congress, and which according to longstanding legal statutes require prior congressional approval. The second is the authority of agents appointed by the President to access protected electronic information, in particular the payment system housed in the Treasury Department. Both of these aggressive actions by the Trump administration (enacted by Elon Musk’s DOGE team or Russell Vought, the Director of the Office of Management and Budget) are at the heart of the Project 2025 manifesto designed to curb the size and authority of the “deep state”.

If Antonin Scalia were still alive, I would be quite confident that Trump would lose both of these cases. No one claiming to be an originalist can ignore the clear language in the laws that created and sustain these government agencies. And the privacy and national security concerns associated with a billionaire for-profit CEO and his teenage hackers gaining access to terabytes of private information about U.S. citizens is not a Right vs. Left issue. Every member of Congress is concerned about violations of privacy. Setting aside the likelihood that Musk’s team has already copied all the relevant information they were seeking, this case screams for action by SCOTUS.

Consider just two invasions of privacy that may already be in the DOGE pipeline: (1) the names of former students and the unpaid balance of their educational loans that were forgiven by President Biden, which could be overturned by a forthcoming executive order, and (2) the names and electronic bank account information of all social security and medicare enrollees who receive benefits by electronic deposit. It would not take a genius software expert to search these databases with cross reference to political party affiliation based on voting registrations to selectively reduce or eliminate current monetary benefits or to send challenges to those benefits via the IRS.

So let’s imagine that SCOTUS takes up these two cases and rules that the Trump administration over-reached and must cease and desist. Will they acquiesce? If not, how will SCOTUS respond? A contempt filing would be meaningless unless it triggered impeachment, which as we know would be highly unlikely (at least until the 2026 midterms when Hakeem Jeffries could become Speaker of the House). Any fines imposed by SCOTUS would gladly be paid by Mr. Musk. Would the DOJ indict and instruct the FBI to make arrests of the actual violators of the SCOTUS decision (since they cannot arrest the President)? Not as long as Pam Bondi is Attorney General, which points to a fatal flaw in our constitution when the person who is engaged in illegal acts is the head of the Executive branch. And since the President controls the military, there is little chance that they would get involved, unless the President declares Martial Law (with South Korea providing a warning about how that might play out).

These are disturbing scenarios, but they are much more plausible now than just a few weeks ago. Although it is tempting to focus on the implications of executive orders that have a direct and immediate impact on our pocket books, the more important focus should be on how these executive orders are fundamentally changing our form of government -- from a democratic republic, with a set of checks and balances, to an autocracy, with unlimited powers to thwart the principles of the founding fathers and the rule of law.

These are dark and scary times. But we must remain vigilant, informed, active, and unrelenting in our efforts to protect a system of government that has been the envy of the world for the past 236 years.