In the Supreme Court’s fast approaching October term, it has agreed to hear appeals in three major cases involving some of President Trump’s most outrageous power grabs.
One addresses his effort to seize control of the independent Federal Reserve System. The second seeks to overturn the sweeping and devastating tariffs he has forced on Americans. The third challenges his arbitrary scheme to ignore both the Constitution and congressional power by refusing to spend foreign aid funds authorized and allocated by Congress.
Before Trump’s second term began, the court repeatedly shaped the law to rescue him from legal and political jeopardy. Ever since his second term began, it has done the same to protect him, his lawless actions, and his destructive policies.
The life-or-death question that now hangs over our constitutional republic is, to paraphrase Bob Dylan, how many times the court turn can its head and pretend that it just does not see. What Trump is doing is immediately apparent and blatantly unconstitutional. His individual abuses seem endless, but all they have one thing in common: they are coherent parts of his designing effort to overthrow our republican form of government and transform American democracy into American autocracy.
Trump has asserted unconstitutional powers to intimidate his opponents and assert control over virtually every significant area of American life. He has neutered Congress and wrongfully exercised its taxing power by imposing unlawful tariffs, seized the functions of national cultural institutions and perverted their functions, bulldozed major law firms and prestigious universities into submission. He has overawed the nation’s largest corporations and put the squeeze on some to cede parts of their assets to his government. He has disrupted and partially destroyed the federal government’s science-based health care system and begun to use federal power and federal agencies to promote his own distorted and self-glorifying view of the nation’s history and culture.
Further, he has transgressed First Amendment values, pressuring television networks to get rid of comedians who have mocked him while at the same time forcing them to make what appear to be extortion payments in order to ensure that his administration would approve their proposed corporate mergers.
He has also corrupted virtually every governmental institution within his reach. He has transmogrified the Department of Justice and FBI into tools of personal retribution and harassment against political critics, and the military into a domestic police force designed to intimidate and repress democratic cities and states.
He has fired protected civil servants because he regarded them as disloyal to him personally. He has repeatedly targeted others who opposed him by inspiring entirely baseless criminal prosecutions. Finally, he has ignored conflict-of-interest limitations and twisted the presidency into a crass, self-serving tool for massive economic gains for himself and his family.
Before Trump’s return to the presidency the court methodically delayed and defeated cases where prosecutors had brought criminal proceedings against him and where civil litigants had brought suits that threatened his reelection campaign. Most egregious by far, it twisted the law and legal sources to confer on Trump a special presidential immunity against criminal prosecutions — a decision that could not possibly reflect the fundamental principles of the American founders, the purpose and structure of the Constitution, or any historically-based concept of the document’s true original meaning.
That decision was and currently stands, like Dred Scott and Plessy v. Ferguson, as a monument to a court seemingly willing to front for unworthy partisan purposes rather than defending the Constitution and its principles.
After Trump’s return to the presidency, the court has continued to support his expansive grasps for power by molding federal law to allow him to fire broad ranges of federal officials and thereby gain control over most if not all independent federal agencies. Moreover, by exploiting its so-called “shadow docket,” it has repeatedly reversed the numerous lower federal courts that had stopped many of Trump’s most abusive and lawless thrusts. Revealingly, in protecting Trump from the lower courts it commonly did so without offering any reasoning that even attempted to explain or justify its decisions.
With the three cases the court will hear this term — and other similar challenges certain to follow — the court will determine the fate of our republic. Will a self-proclaimed “originalist” court continue to preside over the transformation of our constitutional republic into a one-party, cult-dominated authoritarian plutocracy? Or will it finally recognize the lethal danger Trump and his administration pose for our constitutional republic and act as it should? The answer is not “blowin’ in the wind,” but germinating in the minds, hearts and value commitments of the court.
We can only pray that the court will not continue to turn its head and pretend that it just does not see.
Edward A. Purcell, Jr., Joseph Solomon Distinguished Professor Emeritus of New York Law School, is the author of “Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon.”
