Trump Winning On Procedure, Not Facts, Is Bad for Supreme Court

The Trump administration has been deluged with lawsuits challenging its aggressive interpretations of federal laws. Lower courts have overwhelmingly thwarted the president, yet the US Supreme Court has allowed the administration to continue implementing its programs—not because it upheld them on the merits, but because it agreed with the government that procedural rules denied the plaintiffs the relief they sought.

Moreover, in many of these cases, the court has acted through its “shadow docket,” without the benefit of full briefing and oral argument.

The Trump administration’s string of procedural victories poses a problem for the perceived legitimacy and neutrality of the Supreme Court and encourages the president to continue pressing his advantage until the justices clarify whether his actions are lawful.

For instance, a bare majority of the court halted a preliminary district court order directing the administration to restore billions of dollars in research funds that had allegedly been illegally canceled because the grants no longer aligned with President Donald Trump’s priorities.

The justices in the majority, acting on the plea of the solicitor general for emergency relief, didn’t agree the grant rescissions were lawful. But they concluded the recipients were seeking “money damages,” and so their cases had to be filed in the Court of Federal Claims, which has no power to order the canceled contracts to be resumed—only to award monetary relief years after the fact.

To further support that result, the majority concluded the balance of equities favored the government because the recipients hadn’t promised to pay back the money if the administration ultimately prevailed, even though both courts below concluded the rescissions weren’t legally justified—and the Supreme Court majority didn’t disagree.

A second group of cases involves Trump’s pre-emptory firing of members of several federal boards and agencies in which the statute specifies they can only be removed for cause. There is a 1935 case directly on point—Humphreys Executor v. Federal Trade Commission—that the administration seeks to reverse based on intervening precedents, as it has the right to do. But the Supreme Court regularly reminds the lower courts that only it can overturn its own prior decisions.

So what did the government do when the lower courts ruled that the removed officers had to be reinstated? Its principal argument on its application to stay the lower court decisions was that the plaintiffs’ only remedy was to collect back pay. This apparently persuaded the Supreme Court to halt the reinstatements, lest the officers’ return to their jobs upset the new alignment of their agencies—even though the agencies may not be able to function without the removed officers.

There is at least one serious flaw in that conclusion.

The “for-cause” removal protections aren’t principally about job security for high-ranking federal officers. They’re designed to limit the president’s power to control agencies that Congress concluded should be balanced in carrying out their statutory duties.

If, for example, the president can fire all the members of the opposing party on the Federal Election Commission—with the only adverse consequence that the US Treasury may eventually owe them their back pay—the legality of their removal is effectively irrelevant.

It isn’t clear whether the Supreme Court really thinks encouraging pre-firing litigation is compelled by existing law, or if these rulings are a ruse to support the administration without having to decide the constitutional issues in the case on a motion for a stay.

A third group of cases involved the challenges to the president’s executive order seeking to redefine the protections for birthright citizenship in the Fourteenth Amendment. Without exception, lower court judges have rejected the president’s effort. Several of them issued orders extending the relief beyond the named plaintiffs, on the theory that the issue was purely one of law and that everyone should have the benefit of the ruling.

The solicitor general sought a stay of these rulings, but only because of their nationwide scope. The court set the case for oral argument, albeit with limited briefing, and concluded the so-called universal injunctions weren’t allowed in federal courts under existing procedures, leaving in place only the protection for these plaintiffs.

One might fairly ask the Supreme Court why, once it had decided to hold oral argument, it didn’t direct the parties, who had fully briefed the constitutional issue below, to argue the entire case now and end the uncertainty for everyone.

If the Trump administration thought it would prevail on the birthright citizenship question, it would have sought a swift ruling. But it preferred a decision that would cut back on universal injunctions, which would also help in other cases, and still enabled the president to claim victory in a case in which the court simply declined to pass on the birthright question.

From the outside, the Supreme Court is seen as supporting the legality of the Trump administration’s actions, greatly increasing the power of the president. This would be a troubling result if the court had decided these three sets of cases on the merits, especially in light of the court’s 2024 decision granting the president virtually absolute immunity from criminal liability for anything he does in office.

But it seems even worse for the court to continue giving the president his victories while avoiding the issue of whether his actions are lawful.

Some of the cases involving stay rulings favorable to the president will return to the court this term, when the justices will no longer be able to hide behind procedures if they wish to bless what the Trump administration has done, with birthright citizenship and his massive tariffs heading the list.

As the late Rep. John Dingell (D-Mich.) once said, “I’ll let you write the substance of a statute, and you let me write the procedure, and I’ll screw you every time.”

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Alan Morrison is associate dean for public interest and public service at George Washington University Law School.

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