Legal questions raised in the first weeks of the Trump Administration may require the Supreme Court to make difficult decisions quickly.
Is the U.S. Supreme Court’s landmark decision in Humphrey’s Executor v. United States still good law? If so, President Donald J. Trump’s removal of a National Labor Relations Board (NLRB) member without cause is unconstitutional. Is birthright citizenship protected by the 14th Amendment? If not, President Trump’s executive order that prohibits birthright citizenship is unconstitutional. Can the President unilaterally offer federal employees an early retirement buyout? If not, the Administration’s letter to two million federal employees offering them eight months’ pay for doing nothing if they decide to resign is invalid and unenforceable.
Those are just three of the scores of major constitutional law questions that President Trump has raised in his first weeks in office. Each issue should be the subject of careful research, briefing, oral argument, and deliberation, followed by well-reasoned opinions, in federal district courts, federal appellate courts, and the Supreme Court. That is impossible, however, because each question must be answered quickly.
For instance, the validity of the Administration’s offer to pay federal employees must be resolved in a week, because federal employees only have a week to decide whether to accept it. In addition, millions of people who have birthright citizenship are at risk of immediate deportation and firms, employees and unions cannot wait years to find out whether NLRB orders are being issued by an agency that lacks a constitutionally valid quorum.
Federal district courts and courts of appeals are highly likely to differ in how they resolve the questions posed by the President’s recent actions. For instance, the U.S. Court of Appeals for the Fifth Circuit is dominated by conservative Republicans who are likely to be sympathetic to the positions taken by the Trump Administration, while the U.S. Courts of Appeals for the D.C. Circuit and the First Circuit are dominated by liberal Democrats who are unlikely to be sympathetic to those positions. Since the jurisdiction and venue provisions of most statutes give a plaintiff or petitioner a wide choice among courts, the parties who challenge the Administration’s actions are likely to file their complaints, petitions, and motions for preliminary injunctions in Boston or Washington, D.C.
The Trump Administration is likely to experience a string of initial defeats in its efforts to defend its decisions in the First Circuit or the D.C. Circuit. It is likely to be subject to many nationwide preliminary injunctions that prohibit it from taking the challenged action. That will force the Supreme Court to make a lot of difficult decisions in a hurry.
First among the decisions Supreme Court justices must address is one they have often mentioned but have never resolved: Can a federal district judge issue a nationwide preliminary injunction that bars the government from implementing an action for the years required to make a final decision on the merits of the issues the action raises? If the answer is yes, the First Circuit and D.C. Circuit are likely to have a monopoly on the resolution of the many disputes that the Trump Administration has created. If the answer is no, we are likely to have a legal regime in which the meaning of the U.S. Constitution varies greatly from one region to another.
A second issue the Supreme Court will have to decide is how it will manage its emergency docket. A few years ago, the Court began deciding many important disputes on an emergency basis with no oral argument and no opinion. The decisions were temporary in theory, but many of them were final in practice. Circumstances change dramatically long before the courts can finally resolve a major dispute.
Our legal system is not equipped to manage the situation that the Trump Administration has created. I do not envy the justices, who must choose among unsatisfactory methods of responding to this crisis.
