It has become commonplace to predict that the Supreme Court's current Term will be as consequential, for the Court and for the country, as any in living memory. Across the board, the Administration has implemented dozens of policies that have been deemed unlawful – unauthorized by statute and/or unconstitutional – by lower courts. Congress could do much to rein him in; as Madison[1] put it in Federalist 51, "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." But Congress has, for reasons and in ways we need not go into here, appears to have abandoned all of its encroachment-resisting powers to the Executive branch.
That leaves the Judiciary. The Supreme Court, having disposed of a number of procedural matters pertaining to the many legal challenges to Administration action currently flooding through the federal court system,[2] is soon to confront the merits of those challenges this Term, starting with the Tariff Cases (Trump v VOS Selections and Learning Resources v. Trump) on Nov. 5th and almost certain to include challenges to the birthright citizenship Executive Order, the Administration's federalization of the national guard to quell civil disturbances, the President's power to condition federal funding on various extra-statutory criteria of his own devising, the Administration's purported exercise of its powers under the Alien Enemies Act in its deportation program, and any number of other equally weighty matters.
Many friends, colleagues, and family members - not to mention commentators and pundits - who are both deeply worried about the direction in which the Trump Administration is taking the country (as am I) and, more to the point for this blog post, deeply pessimistic about the Court's willingness to stand up to the President's authoritarian tendencies and to rein him in.
