The Supreme Court’s Check on Trump’s Power Was Too Close for Comfort

Photograph by Tierney L. Cross / NYT / Redux Save this story Save this story Save this story Save this story Breathe a sigh of relief, sure. But do not cheer—and do not be cheered by—the Supreme Court’s refusal to let President Trump eliminate the constitutional guarantee of birthright citizenship. That outcome would have been cataclysmic—impossible to administer and likely to create a permanent underclass of millions of American-born children lacking legal status. As the majority opinion, by Chief Justice John Roberts, outlined, it would have flown in the face of English common law, the language of the Fourteenth Amendment, the long-settled precedents interpreting it, and the actions of Congress endorsing that view. But the vote was unnervingly close—closer than the 6–3 bottom line suggested. Four conservative Justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—signed on to the extreme position that the Constitution does not mean what it has long been understood to say: that, with minor exceptions, children born in the United States are automatically citizens. The only thing that saved this case from being a slim 5–4 ruling, vulnerable to the shift of a single Justice, was Kavanaugh’s determination that a separate federal law protects birthright citizenship.

The best way to understand this Court’s relationship with the President is that some of the conservative Justices are willing, some of the time, to resist him. Last December, on its emergency docket, the Court blocked Trump’s deployment of National Guard troops to Chicago. In March, the Court rejected his assertion of emergency power to impose tariffs, as Roberts put it, on “any country, of any product, at any rate, for any amount of time.” On Monday, the Justices prevented Trump from firing the Federal Reserve Board governor Lisa Cook over allegations of mortgage fraud. (Cook has said the allegations are baseless.) Again, these moves are not ground for celebration—they are the least that should be expected from a Court dealing with an out-of-control President.

But the conservative Justices’ zeal for maximizing executive power means that they are more often inclined to accommodate Trump than to block him. So, on Monday, even as the Court drew the line at Fed independence, it granted the President sweeping new control over formerly independent agencies, with the ability to fire officials for any reason, or none whatsoever. This outcome, which overturned the 1935 decision known as Humphrey’s Executor, has long been on conservatives’ wish list; Trump’s aggressive moves to fire Democratic commissioners at the Federal Trade Commission and other agencies simply teed up the opportunity for the conservative Justices. Roberts, seizing the moment, wrote, “Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.” Justice Sonia Sotomayor, dissenting with the two other liberal Justices, Elena Kagan and Ketanji Brown Jackson, warned that the ruling “distorts the structure of Government to fit the majority’s theory of unitary, total executive control. The result is a President who emerges with far greater power than ever before.” How much greater remains to be seen: some conservatives argue that Trump, as President, has untrammelled power to fire other federal workers, and are urging the President to use the ruling to accomplish that end. Sotomayor warned that the majority’s approach “promises to unleash only chaos,” adding that it “at best consigns these issues to years of future uncertainty and at worst risks the end of the employment protections that apply to members of the civil service.”