The courts can no longer hold Trump to account

A five-alarm constitutional fire

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I know that, if you read newsletters like mine, you can get a bit sick of constantly hearing that “the constitution is on the line” or “the Supreme Court just shredded the constitution”. A skeptic might wonder if this line of commentary has a lot in common with the Boy who Cried Wolf. But I would actually say that the fact this is a theme of so much current writing about the United States is because it keeps again and again being true, because the country is living through a moment of intensely dangerous constitutional flux.

I’m currently writing a U.S. politics textbook which is designed to help students understand and navigate the Trump era, and one of the themes I’m stressing is that the constitution is not just some timeless document that forever acts as a guardian of liberty. Rather, the constitution has changed constantly throughout American history as it is challenged, reinterpreted, and amended. You only have to think about the fact that slavery and Jim Crow existed under essentially the same constitution that the United States has today to realize how flexible it can be.

This flux has continued in what we now unfortunately must think of as the “Trump era” of U.S. politics. Two headline features of that era have been the rollback of rights - particularly abortion - and an alarming growth in the power of the executive branch. Just last year, in Trump v. United States, the Supreme Court ruled that presidents are in many cases immune from the law, altering the nature of the U.S. presidency in a way that I think we currently only dimly understand the consequences of. Then, last Friday, they did something of perhaps even greater import.

In a case called Trump v. CASA, the Supreme Court took up the issue of whether lower federal courts can issue “universal injunctions” against an illegal action by the executive branch. The illegal action in question was an executive order that Trump issued on his second day in office which attempts to end birthright citizenship, a foundational constitutional right recognized in the Fourteenth Amendment.

When an administration does something unconstitutional like this, then what usually happens is that someone takes them to court for it. For the purposes of an example, let’s say that the person to do this is someone called Angelo Martinez, who was born to Mexican parents in Los Angeles. His parents aren’t U.S. citizens but because he was born on U.S. soil, Angelo is. And so his lawyers can go to a court and say “hey, this executive order is unconstitutional according to the Fourteenth Amendment”, and the court would agree with him. What then happens is that the court doesn’t just stop Angelo from having his constitutional rights violated, but it rather issues a universal injunction which invalidates the order across the whole United States.

But after Trump v. CASA, this will no longer be possible. Angelo’s lawyers can still take the administration to court, but all he can do is get protection from the order himself - the court can’t protect anyone else as part of Angelo’s case. That means that each and every person who wants to have their constitutional rights respected will have to take the administration to court themselves, which is a legal and practical impossibility.

Like many recent Supreme Court orders, this one was full of ambiguities and unanswered questions. The opinion suggested that other forms of universal relief might still be available, but not exactly which ones. Many other forms of relief - for instance class action suits - take months or years of legal struggle to see fruition. And that matters, because Angelo might be deported by then.

It’s not an exaggeration to say that with this ruling, the Supreme Court has created a zone of lawlessness around not just the person of the president but the entire executive branch. The regime of rights created by the constitution can now functionally not be enforced by the courts on a meaningful timescale. Sure, they might provide relief eventually - but by that point who knows what will have happened.