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Will The Supreme Court Fast-Track Cases Involving Trump?

This is the Trump Docket, where we track some of the most important legal cases of the Trump presidency and how their results could shape presidential power. Questions, comments, or thoughts about cases to cover? Email us here.

If the Supreme Court justices have been trying to signal that they want a quiet term — perhaps some time to recover after Justice Brett Kavanaugh’s hyper-partisan confirmation hearings last fall, which may have shaken public faith in the court as an impartial institution — the Trump administration hasn’t gotten the hint.

Over the past few months, the solicitor general’s office has blanketed the court with requests to bypass the normal legal process and rule swiftly in high-profile cases. Even after the court rebuffed attempts to halt the first Census trial and a climate-change lawsuit, the Trump administration kept trying, asking the justices to cancel an injunction against Trump’s asylum ban. In an even more unusual move, the White House also asked the court to leapfrog lower courts and intervene in cases involving Trump’s decision to revoke the Deferred Action for Childhood Arrivals program and the administration’s policy against transgender military servicemembers.

The justices rejected the Trump administration’s request to block the injunction against the asylum ban in December, but only by a narrow 5-4 margin and several other requests are still pending. How the court responds will tell us a lot about what Trump might be able to expect from the court’s newly minted conservative majority.

The high court does have the power to short-circuit the appeals process, but requests to do so are rare — and it typically happens only in extreme situations, such as when President Richard Nixon refused to turn over tapes of conversations recorded in the White House during the Watergate investigation. But the Trump administration appears to be betting that, given enough pressure, the court’s conservative majority will step in to save signature parts of the president’s agenda. At the same time, these tactics could put justices like John Roberts — who is known for his concern about the court’s reputation — in a pickle, if they want to avoid the perception that the court is simply bending to Trump’s will.

“Taking these cases would suggest that the court is willing to treat the Trump administration as if the normal rules don’t apply to it,” Joshua Matz, a constitutional lawyer and publisher of the Take Care blog, which covers Trump-related legal issues, said. “And it would also have the effect of essentially putting the legality of the Trump administration’s entire domestic agenda on the Supreme Court’s docket this year.”

At least one case involving the administration is already on the court’s schedule. In November, the justices agreed to rule on whether Commerce Secretary Wilbur Ross and other high-ranking officials could be required to testify about their reasons for adding a question about citizenship to the 2020 Census. Those oral arguments are slated for February. Why the court agreed to hear this part of the case is still a bit of a mystery, since Ross never testified and the justices didn’t halt the trial, which means the lower court judge might, in the meantime, issue a ruling that has nothing to do with the administration’s rationale for adding the question — potentially making the dispute over whether they can be compelled to testify irrelevant. (Meanwhile, the trial in a separate lawsuit over the citizenship question is scheduled to begin on January 7, despite the Trump administration’s attempts to slow it down, and another set of cases related to the question seem likely to go to trial later this month.) But the court’s decision to take the case shows, at the very least, that the justices aren’t unwilling to entertain out-of-the-ordinary requests from Trump. And that might explain why Trump administration lawyers are deluging the court with petitions, hoping that at least a few more will rise to the top.

In some of those cases, though, the Trump administration has a tall order — they have to convince the justices not just that the issues in the case are important, but that there’s a genuine need to rule on them early, before other courts have had their say. This was less of an issue for the Census case; since forms for the 2020 Census are due to be printed in June, the court had to act quickly. But the Trump administration is arguing that several other cases are pressing enough to make the cut for this year’s docket too, rather than waiting until the next term, which doesn’t start until October. That’s in part because — according to the administration — lower court judges have been too aggressive in blocking Trump’s policies from going into effect while they’re being challenged.

If the administration succeeds in convincing the court, the ongoing litigation over DACA could end up on the justices’ agenda. They’re helped by the fact that one appeals court has already ruled that Trump couldn’t immediately revoke deportation protections. But the lower courts still haven’t ruled on the substance of Trump’s DACA decision — they have simply said the people challenging it have enough of a chance at success that the program shouldn’t be revoked in the meantime. Stephen Yale-Loehr, a professor at Cornell Law School and immigration law expert, said it would be somewhat unusual for the high court to intervene at this stage. He added that the DACA case lacks the “immediacy” of the travel ban case, where thousands of people were being prevented from entering the country, so there’s not the same sense of urgency for the Supreme Court to act. But Matz and other legal experts told me that the 9th Circuit’s ruling could still provide enough of a reason for the Supreme Court to take up the issue this term.

The Trump administration’s recent plea for the Supreme Court to hear the transgender military ban cases — or, barring that, to at least allow the ban to go into effect — seems likelier to prompt a response of “What’s the hurry?” Several district court judges have blocked the administration from implementing the latest version of the policy, but an appeals court has yet to rule on whether those injunctions are valid. The plaintiffs are arguing that it’s not as urgent as the government’s lawyers claim, since they have already missed several opportunities to expedite it. “We’re still very early in the process,” said Anthony Michael Kreis, a law professor at Chicago-Kent College of Law. “And there just isn’t much evidence that this is a dire emergency.”

The Trump administration’s disregard for protocol could also backfire, if the justices decide that they simply don’t want to be rushed. The justices’ decision to reject Trump’s request to lift the injunction against the asylum ban could be a sign that they’re growing impatient with the administration’s tactics. Whatever happens, their responses to the Trump administration this month will be an important indicator of how the court’s conservative wing — and in particular, Chief Justice Roberts — sees their relationship with the president.


Other Cases

Pre-presidency Trump

  • Michael Cohen, the president’s former lawyer and “fixer,” was sentenced to three years in prison for financial crimes, campaign finance violations and lying to Congress. He was also told to pay nearly $2 million in financial penalties. The judge lowered his sentence from a maximum of more than five years because of his cooperation with special counsel Robert Mueller.
  • Sentencing for former national security advisor Michael Flynn, who pleaded guilty to lying to the FBI last year, was postponed until Flynn has completed his own cooperation agreement with Mueller.
  • Actress Stormy Daniels was ordered to pay nearly $300,000 in attorneys’ fees to Trump, after a judge dismissed a defamation lawsuit she and her attorney, Michael Avenatti, filed against Trump last year. Avenatti has indicated that he’ll appeal the ruling.
  • The Trump Foundation agreed to dissolve under court supervision, amid a broader legal dispute about whether the foundation was used to make illegal payments to the Trump campaign. The rest of the lawsuit, which was filed by the New York attorney general last summer, will continue to move forward.
  • A judge ruled that a group of plaintiffs who are suing the Trump family for allegedly using their brand to lure vulnerable investors into making sham investments can remain anonymous. Allowing plaintiffs to use pseudonyms is unusual, but the judge wrote that their fear of retaliation from the president or his followers is “real” and “significant.”

President Trump

  • The 4th Circuit Court of Appeals agreed to hear a case involving Trump’s alleged violation of the Constitution’s foreign and domestic emoluments clause, which prohibits federal officials from receiving gifts from foreign governments. A lower court judge had recently issued a set of rulings allowing the plaintiffs in the case, the District of Columbia and Maryland, to subpoena Trump businesses. But Trump’s lawyers are arguing that producing these documents would be a “distraction to the President’s performance of his constitutional duties.” This means that the lower court proceedings are frozen until the appeals court rules. The appeal has also been temporarily halted by the court, however, after Trump’s attorneys told the court that the government shutdown was preventing them from being able to do their work.

The Trump Administration

  • A federal judge rejected a motion to dismiss a lawsuit against the Trump administration’s revocation of temporary protected status for Haitian immigrants. The Trump administration responded with a legal filing saying that issuing a subpoena for Elaine Duke, the former Acting Secretary of Homeland Security who was responsible for terminating the policy, to testify in the case would constitute a separation of powers violation.
  • The Trump administration’s revised standards for asylum were rejected by a federal judge in Washington, DC, saying the administration had overreached when it categorically barred asylum seekers from submitting applications based on domestic or gang violence.

Amelia Thomson-DeVeaux is a writer and reporter living in Chicago.

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