President Trump bets big on Supreme Court to uphold controversial policies after lowe

President Trump bets big on Supreme Court to uphold controversial policies after lower court losses

Richard Wolf, USA TODAY
Published 7:00 a.m. ET Jan. 7, 2019

WASHINGTON – President Trump is betting big on the Supreme Court in 2019 to revive controversial policies on issues ranging from immigration and border security to transgender soldiers in the military.

Seeking to match the success he had at the high court on his immigration travel ban against predominantly Muslim countries last year, Trump is counting on the justices – including two that he picked – to reverse lower court losses at the hands of both liberal and conservative judges.

How the Supreme Court rules on the requests in the coming months will shed light on the justices' views about executive power, judicial discretion and Trump's proclivity for upending longstanding policies by whim, or even tweet.

Waiting for word are more than 700,000 undocumented immigrants brought to the United States as children who could be threatened with deportation under Trump's policy. Also in play are some of the estimated thousands of transgender troops serving in the military and others seeking to join who face a partial ban.

The high court already is slated to hear a dispute over the Trump administration's effort to ask about citizenship in the 2020 Census. Other cases that could be headed there eventually include Trump's ban on asylum seekers who enter the country illegally and his threat to withhold federal funds from "sanctuary cities" that do not fully cooperate with immigration authorities.

In most of those cases, the Justice Department took the unusual step of seeking Supreme Court action before lower-court appeals had run their course. The administration railed against local judges issuing nationwide injunctions against Trump's policies. But the high court has been loath to jump over lower courts.

“The executive branch is mistaken if it looks to the Supreme Court to provide a quick fix for their litigation problems," says Peter Margulies, a professor specializing in national security law at Roger Williams University School of Law. "The Supreme Court isn’t designed to be a quick fix.”

Win or lose, the confrontations at the nation's highest court will shed light on whether
Associate Justices Neil Gorsuch and Brett Kavanaugh, Trump’s two nominees, will make a major difference – or whether the president's battle with Chief Justice John Roberts over the independence of the federal judiciary will backfire.

Losing streak at lower courts

Trump enters 2019 with a poor track record in the federal courts.

Just as he did early in his battle to limit travelers from majority-Muslim nations, Trump has lost most of his battles with judges on issues ranging from early skirmishes over special counsel Robert Mueller's investigation into Russian meddling in the 2016 election to the revoking of CNN reporter Jim Acosta's White House press credential.

“The Trump administration has consistently failed in the lower courts, and they’ve gotten some relief in the Supreme Court," says Josh Blackman, a professor at South Texas College of Law in Houston who follows the high court closely.

That wasn't the case on the Deferred Action for Childhood Arrivals program, known as DACA, which has helped more than 700,000 undocumented immigrants avoid deportation and get work permits. Trump sought to end what President Barack Obama began but was swatted down by federal district and appeals court judges who said he lacked the authority to do so.

The Supreme Court refused to block the lower court orders from taking effect but is scheduled to consider hearing the government's appeal at its Friday conference. If at least four justices agree to take the case, it could be heard in April and decided by the end of June.

Trump hasn't had better luck at the high court with his asylum ban. After a federal judge blocked his effort to cut off asylum for migrants who enter the country illegally – and before the case went to an appeals court – the Supreme Court narrowly refused, 5-4, to step in. Both of Trump's high court nominees joined two other conservative justices in dissent.

It probably didn't help that Trump blasted federal district court Judge Jon Tigar as an "Obama judge" after his initial ruling, later upheld in a 2-1 opinion by federal appeals court Judge Jay Bybee, who was appointed by President George W. Bush.

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in response to the president's criticism. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."

Roberts later provided the deciding vote against reinstating Trump's asylum ban, but the issue could reach the Supreme Court later this year or in 2020.

"The asylum ban case in particular raises distinct separation-of-powers concerns because Congress has spoken directly to the issue, which the court found was not the situation with the travel ban,” says Lee Gelernt, deputy director of the American Civil Liberties Union's immigrants' rights project.

'Better chance' at high court

President Trump made a rare foray over to the Supreme Court in October to attend Associate Justice Brett Kavanaugh's investiture ceremony and pose for photos.

The administration's effort to add a question on citizenship to the 2020 Census ties in to the overall battle over immigration, since it could depress the official count of immigrants and cause their communities to lose federal aid and representation in Congress.

That battle is being fought in lower courts, but the Supreme Court has scheduled oral argument in February over a side issue: What evidence can be considered in a challenge mounted by state and local governments and immigrant rights groups? They want to expose the Trump administration's decision-making process, while the administration says it's irrelevant.

Ilya Somin, a law professor at George Mason University's Antonin Scalia Law School, says the administration likely thinks Kavanaugh's replacement of retired Justice Anthony Kennedy is a plus.

“They probably have a better chance at the Supreme Court than at the lower courts,” Somin says.

The administration had been on a losing streak in its effort to ban transgender troops from serving openly in the military – another policy from the Obama administration that Trump sought to change 18 months ago with a tweet.

“That’s not a great way to start a process,” Margulies says, noting former Defense Secretary James Mattis and top Pentagon brass were taken by surprise. “That’s not a very auspicious start.”

Four federal district judges blocked the new policy temporarily while it works its way through the court system. But last Friday, a federal appeals court reversed one of those rulings, reasoning that the administration's policy had evolved and was not a "blanket ban."

The Justice Department has asked the Supreme Court to intercede now rather than wait for other appeals court rulings, and a decision could come this month.
Fighting nationwide injunctions

One of the administration's central arguments is that district court judges operating at the bottom rung of the federal judicial system should not be able to block executive actions nationwide. It's an argument that has won some support in legal circles.

When a federal appeals court ruled in August against Trump's sanctuary cities policy, it nonetheless admonished a lower court for blocking the policy nationwide. And when the Supreme Court upheld Trump's travel ban in June, Associate Justice Clarence Thomas said the court should go further and consider stripping district judges of that authority.

At the same time, critics of the administration's legal efforts contend Solicitor General Noel Francisco routinely is seeking to circumvent Supreme Court rules that allow leapfrogging lower courts "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice."

The Justice Department "has shown a remarkable lack of respect for the judicial process by repeatedly seeking to skip over the lower courts and, rather, go straight to the Supreme Court," New York's former acting attorney general, Barbara Underwood, tweeted in November.

If the strategy proves successful, it could lead to even more efforts by the Trump administration to seek Supreme Court bailouts of lower court rulings. One prime target: The Justice Department is seeking to quash a lawsuit that alleges the president has benefited illegally from his family business, including at the Trump International Hotel just blocks from the White House.

https://www.usatoday.com/story/news/...ns/2462732002/