The Supreme Court’s deference to the presidency is rewriting the Constitution

The Supreme Court’s pattern of deference to the executive has rocked our constitutional foundations and invited presidential disregard of fundamental legal constraints and duties.

James Madison’s assurance in Federalist No. 51 that in a republic, “the legislature necessarily predominates,” no longer holds; the overarching principle of the rule of law – that the president is, indeed, subordinate to the law – lies prostrate; the president’s solemn Article II responsibility to “faithfully execute the laws” seems discretionary; and the judiciary’s duty, as charged by Chief Justice John Marshall, to superintend obedience to the Constitution, has been stripped, ironically, by the Court itself.

In baffling ways, the Constitution seems to have been turned on its head by a Court eager to expand executive power, at the expense of both the legislative and judicial branches. The Court’s ill-conceived ruling in 2024, in Trump v. United States, which will be regarded by history as perhaps the most pernicious decision ever rendered by the High Bench, bathed the president in sweeping immunity from prosecution, essentially a get-out-of-jail card, which President Donald Trump views as having confirmed his own theory that the president enjoys “absolute” power under Article II of the Constitution. 

The ruling, coupled with Trump’s understanding of it, leaves us to wonder about the standing in American law of the epochal principle of executive subordination to the rule of law.

The Court’s stunning deference to the executive branch in Trump v. CASA – the so-called “birthright citizenship” case – which closed this latest term, held that federal district judges may not stop a presidential order from going into effect nationwide. While use of nationwide injunctions – the practice by which federal courts block the application of laws and executive orders for the entire nation as a way of issuing temporary relief pending further appeal – has spawned controversy over the years, the Supreme Court was not bothered by the injunctions issued by conservative judges to halt President Joe Biden’s executive orders and passed on opportunities to declare them “inappropriate means” of relief. 

But in CASA, a 6-3 majority, in an opinion written by Justice Amy Coney Barrett, did precisely that, when the Court held that the injunctions against President Trump’s executive order – the very first of his second term in office – to overturn birthright citizenship, a right clearly established in Section 1 of the 14th Amendment, may not stop a presidential order from going into effect nationwide.

The Court said that a judge may stop an order from affecting a particular plaintiff or state, but where there is no lawsuit, say in a neighboring state, the president’s order must be followed. What is the reality of this decision? In a nutshell, a federal court cannot stop an illegal presidential order from going into effect nationwide. To deny federal judges the capacity to halt illegal acts, including those such as Trump’s executive order banning birthright citizenship, that blatantly subvert the Constitution, begs the obvious question: What’s the point of establishing courts?

While Justice Barrett said that nationwide injunctions are not an appropriate means of relief, she did write for the Court that those affected by an executive order may file suits themselves or join a class action lawsuit. Here’s the rub: most affected by Trump’s executive order lack the wherewithal to file a lawsuit. Class action litigation – the effort to seek justice collectively – faces significant challenges, including matters of complexity and scope, and certification of class, in addition to the lengthy process that may well deny plaintiffs the relief that they are seeking.

The Trump administration knew full well that it could not win on the merits of the case; after all, three federal judges, supported by three courts of appeals, have ruled that it is illegal to end birthright citizenship, a right that is textually guaranteed by the 14th Amendment. In fact, the administration did not even ask the Court to reach a decision on the merits. Instead, it played and won, with the assistance of a quiescent Court, the cynical game of seeking a win on nationwide injunctions so that it could ban birthright citizenship (and proceed with executive orders thwarted by such injunctions) in those states where lawsuits – by individuals or class action – have not been filed.

The Court’s expansion of executive power ignores the rule of law, equal protection, and, indeed, its own institutional responsibilities. This is not commendable jurisprudence.

David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. He can be reached at david.adler@alturasinstitute.com.