Why Trump Keeps Losing at the Supreme Court

The legal reasoning may look like it turns on obscure technicalities, but the administration’s cases are falling apart because of something much more deeply wrong.

Getty / The Atlantic

Donald Trump has been having a rough go of it in the nation’s highest court. A year ago, he lost the biggest case of last year’s Supreme Court term—a challenge to his addition of a citizenship question to the census. This week, Trump lost what is so far the biggest case of this Court term—a challenge to his termination of the Deferred Action for Childhood Arrivals program, which allows Dreamers to remain, study, and work in America on renewable permits. Both rulings found that the president had violated a law called the Administrative Procedure Act.

This sounds technical, and Trump’s defenders are trying to paint it that way. It isn’t. Trump keeps losing not because of something obscure, but because of something fundamental: his abuse of the executive branch. Much of his administration’s approach to governance rests on attempting executive actions that lack any meaningful justification rooted in expertise, or even rational thought.

Trump lost the citizenship-question case last year in an opinion written by Chief Justice John Roberts. The secretary of commerce, who oversees the census, had claimed, preposterously, that the question was added to enforce the Voting Rights Act (despite the fact that the Trump administration, unlike its predecessors, had never enforced the Voting Rights Act). In the Supreme Court, it was ultimately revealed that this chronology was backwards, and that the Justice Department had never asked for such help until the commerce secretary pressured it into making such a request. Moreover, Commerce Department experts had warned that adding the citizenship question wouldn’t help to enforce the Voting Rights Act, and would actually harm the accuracy of the census results. The chief justice concluded: “Altogether, the evidence tells a story that does not match the explanation the [Commerce] Secretary gave for his decision.” Allowing that pretext to stand, the chief justice explained, would defeat a fundamental legal principle, namely that courts should peer past phony reasons and demand the real impetus for agency action: “Accepting contrived reasons would defeat the purpose of the enterprise.”

Taken out of the rarefied, genteel world of the Supreme Court, that language translates roughly to “Pants on fire.” The Court was saying that the Trump administration had cooked the books. It pretended that the Justice Department had wanted help, and it claimed to have consulted Commerce Department experts when in fact it had disregarded their expertise. For the Supreme Court to allow the citizenship question would be to allow itself to be duped—and it refused. In a superficial sense, the ruling was technical. But at its core, the decision was a full-throated rejection of the Trump administration’s tendency to make policy decisions at odds with expert analysis, or really any analysis at all.

When Trump lost the DACA case this past week, Chief Justice Roberts again wrote the Court’s opinion, now rejecting Trump’s attempt to terminate the DACA program’s forbearance of enforcing certain immigration laws against many who arrived in the U.S. as children. This time, it was the Department of Homeland Security that relied on the Justice Department to attempt to justify a major policy change. The attorney general had provided a memo arguing that the provision of certain benefits to DACA recipients was unlawful, and Homeland Security used that memo as its sole reason for terminating the whole DACA program. But, as Roberts explained, that was a complete non sequitur: It “treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.”

Again, the translation is that the Trump administration wasn’t on the level. It had used a legal conclusion about one aspect of DACA to jettison not just that part of the program, but a different one too. It just didn’t make sense. So although the Court again technically ruled narrowly that the process yielding DACA’s termination was inadequate, the Court reaffirmed a more fundamental principle: The executive branch must have legitimate and nonarbitrary reasons for its actions.

Trump’s abuse of the executive branch is one of the most damaging aspects of his presidency, because it rejects a reasoned approach to making government policy. Trump has made clear—most notably during the impeachment process—that he disdains the civil servants who bring deep expertise and valuable experience to important policy questions. So it’s not surprising he blew off their advice that adding a citizenship question to the census would not help in any meaningful way and would harm the core enterprise of the census itself. Trump doesn’t care what they have to say, and his Cabinet members—like the commerce secretary—seem not to care, either. Such disregard is not merely some technical violation—it’s a body blow in Trump’s assault on civil servants.

This is part of Trump’s bigger disregard for law and process. Trump has made clear time and again that he doesn’t really care what the law says, especially about immigration. That’s why he urged shooting rock-throwing immigrants and retaliating against immigrant-friendly sanctuary cities by sending detained immigrants to such cities, and why he fired his own Homeland Security general counsel, who had pushed back on various questionable Trump initiatives. Trump doesn’t see law as a constraint, but something to be manipulated—and that’s clearly a message his Cabinet seems to have received. Consequently, they play fast and loose with the law. The Court, in this decision and last year’s, is essentially saying that the law still matters.

Ultimately, that’s precisely what’s at stake as long as Trump is president. If all that matters is a president’s policy preferences, then law—including judicial review—is basically a facade: Dress it up enough, and it’ll pass muster. But if law matters—if building a record and considering facts and providing honest reasons matter—then Trump is sure to keep losing.