Trump Likely to Test Supreme Court on Agency Powers, Immigration

The US Supreme Court is likely to play a role in upcoming Trump administration policies, green-lighting some and halting others.

That occurred during the first Trump presidency when the court narrowed but ultimately allowed the administration’s travel ban against several majority-Muslim countries but also nixed a citizenship question on the 2020 census.

“Right away we’re likely to see the Trump administration move forward with a flurry of executive orders and changes to various government and regulatory policies that will likely be controversial and people will try to challenge,” said Roman Martinez, a partner at Latham & Watkins LLP.

“In terms of the kind of cases that come up, I think, that’s going to largely turn on exactly what President Trump and the new administration tries to do, how quickly they move, and how aggressive they are,” Martinez said.

Here’s a look at what policies might come before the court and how the conservative supermajority that Trump built with three high-court appointments might respond.

Immigration Focus

Immigration was a focus during the first Trump administration and during the 2024 election.

Blue state attorneys general and civil rights groups challenged Trump’s travel ban in the early days of his administration. After several iterations, the ban eventually made its way to the high court, which upheld a weakened version in Trump v. Hawaii.

Trump has already promised to end birthright citizenship for children of noncitizens and unauthorized immigrants born in the US. He’s also vowed to carry out a mass deportation of undocumented migrants and secure the US border with Mexico.

Court watchers anticipate that some of Trump’s new policies will come before the justices, but they say it’s hard to know exactly what they’ll be.

Immigration policies and the legal disputes challenging them tend to be “very fact dependent and specific,” said Devon Ombres, the senior director for courts and legal policy at the Center for American Progress.

It’s even harder to know how the justices will respond, given that the policies to be challenged are yet unknown. But Thomas Berry, the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, said one pattern is clear: The justices are more deferential to asserted national security concerns than economic ones.

If the Trump administration can make out a plausible national security interest, they’re more likely to prevail in immigration matters that come before the court, Berry said.

Agency Heads

An issue that’s likely to come to the court sooner is tenure protection for agency heads, particularly those at multi-member independent agencies like the Federal Trade Commission and the National Labor Relations Board.

In 1935’s Humphrey’s Executor v. United States, the Supreme Court said Congress can set up independent agencies and protect officials by allowing them to be removed only “for-cause.”

Berry said some justices have suggested that Humphrey’s Executor “may be out of step with the current court’s thinking about the separation of powers,” and that the president should be allowed to fire agency heads for any reason.

The Roberts Court has so far declined to overturn the decades-old precedent, most notably in Seila Law LLC v. Consumer Financial Protection Bureau.

Berry said Trump might force the court’s hand. He noted Trump campaigned on firing government officials within the “deep state,” which could “tee up a challenge to ultimately topple Humphrey’s Executor,” Berry said.

Although a “wonky” administrative law issue, Berry said it would “make a huge difference on how the government functions” in making agencies more beholden to the current president.

Agency Power

Federal agency power is another administrative law issue that advocates are closely watching.

The justices last term undid another decades-old precedent, Chevron deference, that required courts to defer to an agency’s interpretation of an ambiguous statute. Deciding the meaning of federal law even if unclear is for courts to determine, the justices said in Loper Bright Enterprises v. Raimondo.

Although the immediate consequences of Loper Bright were felt by the Biden administration, advocates say the reasoning behind the decision should apply equally to the new Trump era.

“Blue state AG’s and civil rights organizations will attempt to use Loper Bright to hinder regulatory roll back under the Trump administration, especially where it’s going to have major bottom line impact on everyday Americans,” Ombres said.

He said Loper Bright will test the Supreme Court and other lower federal courts on whether they “are going to hold Trump administration policies to a different standard than Biden ones.”

Old Laws

Another test for the Supreme Court will be whether it continues to look skeptically on policies based on the invocation of laws that really aren’t a good fit, said Cecillia Wang, the National Legal Director of the American Civil Liberties Union.

She pointed to 18th and 19th century laws that conservatives have raised to challenge birthright citizenship, medication abortion, and due process procedures required in an immigration proceeding.

The current court has been skeptical of stretching statutes and constitutional provisions beyond what they were originally intended to protect. Given that skepticism, Wang expects Trump will lose on these issues. But she’s confident the administration will try to bring them before the justices.

To the extent that the Trump administration tries to use these old laws in new and novel ways, it’s “going to run into a buzz saw in federal courts,” Wang said.