Trump Tests Limits of His Powers as Supreme Court Reconvenes

The US Supreme Court so far has largely accommodated Donald Trump’s assertions of sweeping presidential power. The term that starts Monday will determine just how far the court is willing to go.

For eight months, the conservative supermajority has helped Trump amass power, temporarily lifting about 20 rulings that were thwarting his initiatives. The court now is positioned to consider the underlying legal questions behind his imposition of global tariffs, bid to control independent regulatory agencies — including the Federal Reserve — and effort to restrict automatic birthright citizenship.

US President Donald Trump, left, and Chief Justice John Roberts shake hands during a joint session of Congress in March.

Photographer: Win McNamee/Getty Images/Bloomberg

The stakes are high. Chief Justice John Roberts and his court must decide what lines to draw with a president who has repeatedly said his election means he can do whatever he wants. With the Republican-controlled Congress showing little interest in resisting Trump, any constitutional guardrails will have to come from a court that under Roberts’ leadership for the past 20 years has expanded White House power.

“We’re going to learn about the extent to which this court is willing to stand up to the president,” said Gillian Metzger, an administrative and constitutional law professor at Columbia Law School.

The presidential-powers showdowns will occur alongside a series of cases that could transform federal voting law — and potentially bolster Republican prospects in the coming elections – as well as what are sure to be polarizing clashes over transgender athletes and counseling aimed at changing a child’s sexual orientation or gender identity.

The start of the nine-month term follows a flood of litigation during the opening months of Trump’s term, most of it stemming from the torrent of far-reaching executive actions he issued since his Jan. 20 inauguration.

The Supreme Court has already acted on 23 emergency requests from Trump, with the conservative majority giving him at least a significant part of what he sought in 20 of those cases, often over dissents from the three liberal justices. Those include fights over mass firings, federal grant funding, alleged racial profiling by immigration agents and access to sensitive Social Security information by the Department of Government Efficiency.

The justices took the unusual step of scheduling arguments in January to consider whether Trump can temporarily oust Fed Governor Lisa Cook while her case continues. The court said on Wednesday she could stay in the job until then. The move effectively put off until next year a test of its willingness to protect the Fed’s independence from the White House after Trump has repeatedly criticized the board and Chair Jerome Powell and demanded interest rate cuts.

The court also has pending emergency requests on the rights of Venezuelan immigrants and the gender designation on passports. And many more cases are certainly on the way.

Roberts’ Vision

The 70-year-old Roberts has been a key player in Trump’s successes. The 2005 appointee of Republican President George W. Bush is a longstanding proponent of a strong presidency, though not the all-powerful one envisioned by Trump.

It was Roberts who authored Trump’s most far-reaching victory, the 2024 decision that gave presidents criminal immunity for official acts while in office. The ruling, which described the president as “the only person who alone composes a branch of government,” shielded Trump from a trial over the 2021 Capitol riot and, in the view of critics, let him start his new White House term with a sense of impunity.

The decision also marked a break from Roberts’ more measured views on presidential power, some legal experts say.

“It remains to be seen how much of the earlier version of Roberts remains – or whether he’s somehow become convinced that what the constitutional order needs right now is more presidential power and immunity,” said Kate Shaw, a constitutional law professor at the University of Pennsylvania.

Roberts has long enjoyed a reputation as a minimalist who tends to prefer narrow, consensus decisions where possible. But since Justice Amy Coney Barrett’s 2020 confirmation, Roberts has had to manage a court with five other conservatives – including three Trump appointees — a group that at times wants to go further and faster in reshaping the law than he does.

“It’s clear that there is not a majority for minimalism, or at least not consistently, and that puts him in a difficult position,” said Jonathan Adler, a constitutional and administrative professor at William & Mary Law School.

Roberts didn’t respond to a request for comment.

Agency Heads

Roberts has mostly been on board with this year’s Trump decisions. In the 20 rulings backing the president, Roberts has dissented even in part only twice, both times in cases involving the administration’s cutting off of federal grants.

He has been a driving force behind rulings that let the president fire the heads of independent agencies despite job protections Congress gave those officials to shield them from political pressure. In April he took the unusual step of clearing Trump to temporarily remove Democratic members of two independent agencies – the National Labor Relations Board and Merit Systems Protection Board – without waiting for the full court to weigh in.

The court is preparing to hear arguments in December to consider overturning the 1935 precedent that provided the legal foundation for independent agencies. That ruling, known as Humphrey’s Executor, said President Franklin Delano Roosevelt lacked power to fire a Republican member of the Federal Trade Commission.

A key question will be how, if at all, the case affects the Federal Reserve. When the full court reaffirmed Roberts’ decision to let Trump remove the NLRB and MSPB members, the majority went out of its way to suggest the Fed could keep its independence, calling it a “uniquely structured, quasi-private entity.”

Federal Reserve Governor Lisa Cook

Photographer: Al Drago/Bloomberg

Trump, who has blasted the Fed for not cutting interest rates more quickly, is now effectively trying to sidestep that ruling by moving to fire Cook for alleged mortgage fraud, which she denies.

Signature Tariffs

The court’s views on the legality of Trump’s tariffs are far less clear. The justices will hear arguments Nov. 5 without having been asked to issue the type of preliminary order that might have hinted at their leanings.

At stake are import taxes affecting trillions of dollars in trade. The central issue is whether Trump can impose them using a law that gives the president a panoply of tools to address national security, foreign policy and economic emergencies – but that doesn’t mention tariffs.

Although three lower courts have ruled that Trump exceeded his authority, the president will have some potentially key advantages at the Supreme Court. Justice Brett Kavanaugh has already signaled he won’t apply the so-called major questions doctrine, a legal argument the court invoked repeatedly to curb President Joe Biden’s agenda.

Under the major questions doctrine, federal agencies need explicit congressional authorization to take actions that have sweeping economic or political significance. But in a June ruling involving the Federal Communications Commission, Kavanaugh said the doctrine shouldn’t apply in the realm of foreign affairs and national security.

“The usual understanding is that Congress intends to give the president substantial authority and flexibility to protect America and the American people,” Kavanaugh wrote.

For Roberts, the question may be less about legal doctrine than about his stomach for invalidating a president’s biggest economic initiative. Roberts famously avoided doing that in 2012 when he cast the deciding vote to uphold President Barack Obama’s Affordable Care Act.

“They’re really going to have to grapple with whether they are going to overturn the president’s signature economic policy,” said former Solicitor General Elizabeth Prelogar, who served as Biden’s top Supreme Court lawyer. That sort of consideration “weighs on” Roberts, she said in remarks last month at William & Mary Law School.

The justices are hearing the case on an ultra-expedited basis, suggesting they might try to rule well before their term ends in late June or early July.

Citizenship Test

Birthright citizenship is all but certain to pose a third major test of Trump’s early agenda. Trump’s Jan. 20 executive order would jettison what has been the widespread understanding that the Constitution’s 14th Amendment confers citizenship on virtually everyone born on US soil. Trump would restrict that to babies with at least one parent who is a US citizen or green card holder.

The Supreme Court in June used a group of challenges to Trump’s initiative to make it harder for federal trial judges to block disputed government policies nationwide. Now the administration is asking the justices to take up two new appeals and uphold the executive order itself. Lower courts have uniformly ruled against Trump, saying his approach violates the Constitution and federal immigration law.

Although the court’s conservatives backed Trump the first time around, they didn’t indicate they agreed with his interpretation of the 14th Amendment or were inclined to back his executive order. The administration may get a “less receptive audience” than it has with its emergency requests, said Greg Garre, who served as solicitor general under Bush.

“It is still extremely early to gauge the relationship between the administration and the court and the trajectory they are on,” Garre said. “We’re not even a year into the second Trump presidency. Things could look different a year or two from now.”

--With assistance from Zoe Tillman.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net;
Sara Forden at sforden@bloomberg.net

Steve Stroth

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