The Supreme Court Thinks It Protected the Economy From Trump. It's Delusional.
The Supreme Court's recent decisions reveal an emerging strategy for dealing with Donald Trump, one that puts the entire judiciary's independence and legitimacy at great risk. Over and over again, the conservative supermajority has injured Trump's violations of the law, allowing him to consolidate an unprecedented amount of power at the expense of the other branches. Yet from time to time, the justices have also tried to draw a line in the sand to prevent Trump from transgressing constitutional principles that they personally hold in esteem. This tactic was on full display in May, when the court allowed Trump to fire two leaders of independent agencies—an undisputed violation of federal law—while trying to protect the Federal Reserve from his interference. It was fully visible a week earlier, too, when the court ruled that the Trump administration could not expel Venezuelan migrants without due process—while refusing to decide whether he could invoke an 18 th -century wartime law to deport them in the first place.
Mark Joseph Stern discussed this approach to Trump, and his dire shortcomings, with Jed Shugerman during a live recording of Amicus at the WBUR Festival in Boston. Shugerman is a legal historian and professor at Boston University School of Law who has meticulously debunked the bogus history that lies behind Trump's claim to unlimited power. An excerpt of their conversation, below, has been edited and condensed for clarity.
Mark Joseph Stern: I think we could go on for ages about all the fake history that lies behind the “ unitary executive theory .” But I want to raise a practical point: This just seems like the worst possible moment in history for the Supreme Court to be embracing an unlimited vision of executive power. For anyone who cares about American democracy, Trump is the last guy who should get the keys to dictatorial control over an unrestrained executive branch. Do you think the Supreme Court is doing this because they love Trump and want to crown him king? Or do you think the court is doing this because, well, they have a majority right now, so they're going to get it done and let the chips fall where they may? In other words, why is this happening under one of the least responsible, least civic-minded presidents we've had in American history?
Jed Shugerman: I don't think they're doing it for Trump. I think they are bargaining in the shadow of Trump. They worry about Trump, but they are more ideologically opposed to the New Deal administrative state. So in this opinion where they bent over backward to invent bad history to protect the Federal Reserve, they're showing you the money. And by that I mean they're showing you their right-wing ideological commitment to big-business conservatism. Now, I think Trump worries some of the justices. And this is a strange time for them to be handing him so much power when his tariffs are destroying the market. But they're revealing how much their ideological blinders blind them to the danger that Trump poses to democracy, and to the danger he poses to liberal capitalism.
If I were a conservative, I'd be looking at this moment and saying: Now is the time to look back at the founders and understand that they designed the Treasury and other financial institutions to be independent from the president. Madison proposed an independent comptroller! The founders had this concern about executive power in their own time, and a good originalist would recognize that Trump is the danger that the founders foresaw. But the conservative justices are so pro–Wall Street that they can't even see that Trump is a danger to Wall Street.
Well, except that's why they carved out the Federal Reserve from Trump's reign, right? They're savvy enough to realize that if Trump takes control of the Fed, all our 401(k)s will be in the toilet by 5 pm Trump will fire Fed Chair Jerome Powell, start slashing interest rates, and we'll have disastrous inflation. So they just carved out the Fed so Trump couldn't get his greasy little hands around it. But at the same time, they gave him control over these agencies that protect unions and federal workers, that guard against monopolies and corporate power, because the conservative justices don't want those protections to exist. It seems to me they want protections for Wall Street, but not for everyone else. Do you think that's fair?
I think that's fair. And it connects to this broader issue: The legal establishment can't understand the threat of Trump. He thinks it can make a deal. That's the mindset of elite lawyers right now. They think they can make bargains with Trump. And they have ignored all of Trump's history, where every deal is a deal he can break. So law firms pre-capitulate to Trump thinking he'll stick with these deals. Universities pre-capitulate and acquiesce to Trump thinking he'll stick with the deal and move on. What is the Roberts court doing when it splits the baby? It's thinking: Oh, Trump will only listen if we make a deal. We're going to pre-acquiesce to Trump's lawless firings thinking that will preserve our good graces.
Roberts got embarrassed at the State of the Union when Trump turned to him and said , “Thank you again, I won't forget it.” That should have been the moment where Roberts said: My legitimacy is in the tank and I need to stand up . Instead, he fell in line with the law firms and decided to pre-capitulate on these illegal firings and make a deal. But really, it's the art of the deal with the devil. And it never works out.
It seems like the court thinks it can hurt Trump's violations of the law when they coincide with the court's own agenda. Dismantle the New Deal? Check. Tear down the administrative state? Check. Kill protections for unions and federal workers? Check. But then the court thinks it can draw the line and enforce the law when Trump goes too far and presses in a direction the court doesn't like. The court doesn't like summary deportations of migrants without due process and says that seems a little too fascist, even for us. Or it says you can't fire Jerome Powell, because then we won't have enough money to send our kids to Harvard. Or Liberty University, or wherever their kids want to go.
But what happens if Trump does fire Powell or if he continues to summarily deport migrants without due process? And the Supreme Court tries to draw the line and say you can't do that ? It's already set this precedent of blessing his egregious violations of the law. It has already injured his egregious violation of a 90-year-old precedent and multiple federal statutes, simply because a majority happens to dislike those laws and precedents. But why would Trump pay attention to the court and abide by their constraints when they decide to draw the line?
This is also where Trump v. United States comes into play . Because remember, the Fed doesn't have total protection. It's just that the president can't fire his members without “good cause.” Perhaps Trump says, “OK, my good cause is that the Fed is tanking my tariffs and real America's economy,” fires Powell, and dares the court to challenge him. Well, in Trump v. United States , the Supreme Court ignored the president's duty to faithfully execute the law , rejected the notion that the president has to show good faith, and held that you cannot question the president's motives. That means that if Trump does want to fire Powell, he can simply cite Trump v. United States and say he has good cause that the courts can't interrogate. The decision isn't just a get-out-of-jail-free card. It's also a get-out-of-law-free card.
You just said you don't think the justices who joined Trump v. United States are doing all this with a specific desire to empower Trump. I'm really not so sure. I don't think any of them knew he'd go quite this far, but if you read Trump v. United States , it really does read like it's setting the table for Trump to come in and destroy all remaining checks on his power in a way that vindicates the most extreme and dangerous vision of the unitary executive theory.
Certainly these justices don't like the administrative state. It also seems like they don't care much for Congress—when we talk about independent agencies, we're talking about protections against firing, meaning federal statutes enacted by Congress to structure the executive branch in a way that doesn't lead us straight to a dictatorship. And the fact that the court would blow past Congress' handiwork, with a wave to utterly bogus history, suggests that they view the presidency as the apex of American governance. They're ready to crown a king, and they're going to do it even if it is King Trump.
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