Since returning to the U.S. presidency, Donald Trump has sent more emergency applications to the Supreme Court than Joe Biden sent in four years.Annabelle Gordon/Reuters
Debra Thompson is a contributing columnist for The Globe and Mail.
The Trump administration was dealt a series of losses in court last week. In quick order, federal courts halted plans to deport 700 migrant children to Guatemala, ruled that the Trump administration’s deployment of the National Guard to Los Angeles was unlawful, found that more than US$2-billion in research funding to Harvard should not have been frozen, determined that the 18th-century Alien Enemies Act could not be used to speed deportations of alleged members of a Venezuelan criminal gang, and blocked the Trump administration from cutting US$12-billion in foreign aid.
It is a time-consuming, expensive, legally complicated silver lining to the precipitous democratic backsliding we’ve seen in the United States since President Donald Trump took office: the courts are working, at least to some extent, as a check on executive power.
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The downside, of course, is that Mr. Trump issues executive orders almost as frequently as he goes golfing, while members of his administration are relentlessly working to cement this administration’s agenda and priorities into every facet of state business.
The bad news is that the goal is to overwhelm, divide, and conquer. In the barrage of policy changes big and small, it’s a challenge to keep track of the decisions alone, let alone to map their effects on the citizenry. The courts can check and balance the power of the President, but only if plaintiffs have standing to challenge his decisions. So far, hundreds of lawsuits have been filed by state attorneys, nonprofits, law firms, and unions, challenging the Trump administration’s attempts to accelerate and broaden deportations, end birthright citizenship, fire federal employees, revoke environmental protections, terminate billions in federal funding for the arts, scientific research, educational programming, disaster preparedness, and more, and restrict treatment for trans youth.
The most sensational cases will win headlines and the most ostentatious will be challenged all the way to the Supreme Court. But legal proceedings take time and money and, in the meantime, a great deal of societal damage can be done in perfectly legal ways.
The even worse news is that it is entirely unclear what will happen when the most consequential cases are heard before the Supreme Court, which, with its conservative majority, has proven quite receptive to Mr. Trump’s claim on extensive executive powers.
In fact, the Trump administration is already bulldozing the usually cautious and deliberate proceedings of the Supreme Court through the use of the emergency docket, which are legal applications that seek immediate action from the court. These cases use an expedited process that limits briefings and are usually without oral arguments. They are then decided with unsigned orders from the court with little or no explanation of the legal rationale informing the decision. Though once reserved for urgent matters – most often, requests to stay executions of those condemned to the death penalty – the so-called “shadow docket” has been increasingly used by the Trump administration to challenge rulings of lower courts.
Some of the cases that have been or are about to come before the Supreme Court’s emergency docket are highly controversial and of enormous consequence – abortion rights, COVID-19, and environmental regulations, to name but a few. Just last week the Trump administration asked the Supreme Court for an expedited hearing to reverse an appeals court decision that deemed the imposition of tariffs to be an unconstitutional use of the President’s emergency powers.
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In these first eight months in the Oval Office, Mr. Trump has sent more emergency applications to the Supreme Court than Joe Biden sent in four years, and triple what each of Barack Obama and George W. Bush filed during their two-term presidencies.
This overuse of the emergency docket is notable enough that Supreme Court justices – who typically remain fairly quiet on political issues, lest they be perceived as preemptively taking sides – have spoken out. Justice Sonia Sotomayor wrote a scathing dissent on Monday condemning the Court’s 6-3 decision to allow federal agents in Los Angeles to stop, question, and detain people about their immigration status based solely on factors like their race or ethnicity. In addition to the injustice of allowing ICE agents to racially profile without cause, the majority opinion, she wrote, is “yet another grave misuse of our emergency docket.”
In Mr. Trump’s world, everything is an emergency – tariffs, immigrants, the fentanyl allegedly flowing into the United States from Canada, crime in Washington D.C., and Harvard. The danger, of course, is that when everything is an emergency, nothing truly urgent gets the careful attention and deliberation it deserves. Courts must continue to act as a check on presidential power, not an accomplice to the rapid deterioration of democratic norms.