Today, President Trump tweeted a bewildered question about the latest Supreme Court decision against him: “Do you get the impression the Supreme Court doesn’t like me?”
Thousands of people on Twitter promptly tweeted back, “It’s not about you!” Yet the president’s self-involved question touched on a truth. The Supreme Court’s decision in the latest immigration case did reveal something about the Court’s evolving attitude toward the Trump presidency: not personal dislike, obviously, but rising institutional distrust.
Almost exactly two years ago, Trump won his travel-ban case at the Supreme Court. The plaintiffs challenging the ban raised a number of arguments, but their most important argument was this: Yes, the president has broad authority over immigration. But this president is abusing that authority for bigoted purposes, as attested by literally dozens of statements during the 2016 presidential campaign and after.
Writing for a 5-4 majority, Chief Justice John Roberts replied, in effect: Not going to go there. “Plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text,” he wrote toward the top of the majority opinion. Roberts elaborated later in the text:
Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.
Roberts then cited and quoted a 1976 precedent in which the Court “limited our review to whether the Executive gave a 'facially legitimate and bona fide' reason for its action … Given the authority of the political branches over admission, we held that ‘when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification’ against the asserted constitutional interests.”
Two years later, Roberts has had enough. In Department of Homeland Security v. Regents of the University of California, a majority led by Roberts decided that the time had come to stop taking Trump-administration claims at face value.
DHS v. University of California involves the program formally known as Deferred Action for Childhood Arrivals. DACA confers a temporary protected status on about 700,000 people who entered the United States illegally as minors. The DACA program was adopted by executive order in the Obama administration, not by act of Congress. Theoretically, the Trump administration had every right to rescind this order by its predecessor.
This time, however, unlike in 2018, the Roberts Court looked under the hood of administration powers. Trump’s mode of using those powers, Roberts wrote, was “arbitrary and capricious”—and therefore invalid under the Administrative Procedure Act of 1946 and the other rules of administrative law.
This time, again unlike 2018, the Roberts Court declined to believe the administration’s justifications of its actions, dismissing them as “convenient litigating positions” that had been “offered nine months after [DHS] announced the recession” of the DACA program and “after three different courts had identified flaws in the original explanation.”
Trump is not wrong, then, to feel a personal sting in the court’s decision. The court reasoned: If we could believe your story, we would accept your actions as within your powers. But we cannot keep pretending to believe one obviously false story after another. You lose because you lie.
Which raises an interesting question for all of us watching the Court. Has something snapped for good in Roberts? Has he reached some legal or political breaking point? Or was DACA a special case, one where the severity of the stakes for so many people pushed him to one side of the road, but left him ready to veer back to the other when the stakes seem lower?
Here’s something we can say at least: A conservative court is deferring less to the Trump administration’s assertions about itself. Trump is losing credit where he held it longest, and may soon need it most. Sometime within the next two weeks or so, the Supreme Court will deliver its decision in the Trump business-documents case. The Trump administration has argued that the president’s accountants and bankers should be exempt from congressional subpoena, in part because the president is too ferociously busy with the nation’s business to be bothered by such intrusions. Everyone with a Twitter account can see how false that argument is. Will the Court allow itself to see that, too?
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