Supreme Court of the United States
Assessing the federal judicial system’s interactions with a potential second Trump term requires confronting Trump’s intent to leverage presidential emergency powers, a danger accelerated by the Court’s recent 6-3 immunity decree and with no electoral check in a second term. Emergency powers, in particular a President’s invocation of the Insurrection Act, would allow the President and his administration to operate with expanded autonomy and authority and reduced accountability.
Congress has specified rationales for a President to invoke emergency powers domestically:
The Insurrection Act of 1807: The Constitution grants Congress the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Through the Insurrection Act, Congress delegated broad authority to the President to deploy the military and state and national guard domestically in certain circumstances. Notably, that Act was last invoked in the continental U.S. in 1992 to send in federal troops to restore order in response to the riots in Los Angeles after a jury acquitted white police officers of brutally beating a Black motorist, Rodney King. The statute has rarely been invoked but was invoked decades ago to protect Black students from violent white mobs blocking Court-ordered racial integration of public schools in accordance with Brown v. Board of Education.
Trump has threatened to use the military “to quell violence in primarily Democratic cities and states” and against immigrants he has characterized as engaging in an “invasion” of the U.S. He reportedly “considered invoking the Insurrection Act twice, once during the Black Lives Matter protests and again as part of his efforts to stay in office after losing the 2020 election,” but was thwarted by some within the executive branch. He has said: “The next time, I’m not waiting.” In response, several civil society groups have urged Congress to amend the Insurrection Act to reform it. Senator Richard Blumenthal as well as the Congressional Progressive Caucus have sought to do so, but they did not have enough votes to pass new constraints on such powers.
Notably, after the Hurricane Katrina disaster, Congress broadened the statute–over the objections of governors–to authorize the President to deploy troops to restore public order and enforce the laws of the United States without a request from the state involved, if he deems that local authorities are unable to maintain public order, specifically: “[w]henever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States….” This seemingly gives a president significant latitude, as the Brennan Center told the Associated Press: “The principal constraint on the president’s use of the Insurrection Act is basically political, that presidents don’t want to be the guy who sent tanks rolling down Main Street… There’s not much really in the law to stay the president’s hand.”
Even if there were not numerous Trump-installed loyalists in the courts, the judiciary’s power is generally at its weakest when a president invokes national security. While there are important doctrinal differences between a president’s actions in foreign and domestic contexts, it is worth noting that during Trump’s first term, the Court cited the Executive’s broad constitutional power to protect national security and to conduct foreign affairs in order to uphold the Muslim Travel Ban over claims the policy was unconstitutional and discriminatory.
The risks here are compounded by the Court’s recent 6-3 decree that gives “absolute immunity” to a president’s “official acts,” a new precedent that would likely be invoked to impede claims that novel uses of the Insurrection Act against the U.S. population are criminal or illegal. By transforming potential criminal violations into lawful acts if the president does them, Chief Justice John Roberts and his judicial cohorts have thrown decades of U.S. military training on disobeying “unlawful orders” into chaos. It is possible some court could provide a belated check for people claiming the military violated their individual rights by following such orders, but history suggests relying on even normal courts for protection against the harms to liberty caused by emergency orders is folly. For example, in 1944, two years after President FDR ordered the internment of Americans of Japanese descent, the imprisonment continued as the courts construed those detentions to be constitutional in Korematsu v. US in 1944 (America was still at war). The Court did not reverse that decision until 2018, 75 years after the ruling was issued.
National Emergencies Act: President Trump in 2019 declared a national emergency along the southern border to reallocate federal funding for his border wall under the National Emergencies Act. The Ninth Circuit held that this funding transfer was unlawful, but the U.S. Supreme Court agreed to review that ruling and suggested it could side with the Trump-appointed dissenter in the Circuit Court opinion. But before the Court could hear arguments in that case, President Biden was elected and ordered an end to the border wall’s construction. This led to the Court effectively dismissing the litigation and vacating the lower courts’ rulings.
Trump Appointed Federal Court Justices
Additionally, a second Trump term would also likely take full advantage of the machinery and changed incentive systems that the right-wing legal movement has rehearsed and honed, in order to:
— Advance “Unitary Executive Theory,” further endowing the President with concentrated power over administrative offices and agencies.
— Move the U.S. further toward a Christian Nationalist or theocratically-aligned approach to the law (sometimes called “Natural Law”) that centers divinity as the source of Americans’ rights. This approach freezes the scope of constitutional protections to a long ago period based on cherry-picking history in order to invalidate rules that contradict the 6-3 Court’s desired religious/political outcome. Calling this approach “natural law” attempts to maintain their base’s buy-in to the idea of the Supreme Court is serving as a non-political arbiter and source of truth–even though public confidence in the fairness or trustworthiness of the Court continues to plummet.
— Close the door behind them, preventing competing political parties from ever eroding their capture of the Court and, with it, their hold on what the law means for people’s rights, based on our analysis.
UNITARY EXECUTIVE THEORY
Leonard Leo’s Federalist Society and some of the justices on the Supreme Court have advanced an expansion of presidential power through a constitutional re-interpretation. In the words of former White House Counsel John Dean, “[i]n its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters.” The argument generally goes as follows:
— The Vesting Clause of Article II vests all executive power in the President alone
— The President has complete control over all Executive Branch agencies, officials, and employees
— Congress cannot limit the President’s executive power or control of the executive branch
— Independent agencies and independent counsels violate the unitary executive’s power
The alignment between the insurgents advancing this theory and the Court has accelerated since the Trump appointments to the Supreme Court. Specifically, the 6-3 immunity decree sought to ground its grant of “absolute immunity” for “official acts” of a president in the notion that the “separation of powers” compelled that result. This is contrary to the language of the Constitution, which specifies that the president has a duty to “take care” that the laws are “faithfully executed” and can be impeached for crimes, as well as decades of legal precedents. The Trump immunity edict, along with the rulings in Jarkesy v. SEC and Corner Post v. Federal Reserve, show that the six-member faction dominating the Court are embracing Leo’s objectives to remake the federal government in radically reactionary ways.
Leo described this moment at the Council on National Policy in 2019, after Kavanaugh was installed on the Court:
“We stand at the threshold of an exciting moment in our republic: the revival of our structural Constitution by the U.S. Supreme Court, a revival in those very important principles of limited constitutional government—separation of powers, federalism, enumerated powers, limits on judicial power, sovereignty—and this is really I think, in recent memory, a newfound embrace of limited constitutional government in our country. I don’t think this has really happened since probably before the New Deal, which means no one in this room has probably experienced the kind of transformation that I think we are beginning to see.”
This so-called “structural constitution” is the touchstone for the immunity ruling as well as the effort to impose the “Unitary Executive Theory,” in its broadest implications–or reach–as binding law.
The Constitution plainly grants Congress the power to make the laws and charges the President with a duty to faithfully execute them but, under the Unitary Executive Theory, Congress cannot readily constrain the President even though the central framework of our government charter is “checks and balances” rather than one of imperial powers. But, America is contending with a 6-3 Supreme Court faction that is acting like an imperial court and that, in turn, is giving a president imperial powers while neutering Congress–for example, by rewriting the First Amendment to bar Congress from adopting common sense anti-corruption measures for elections in the Bipartisan Campaign Reform Act (McCain-Feingold) in the 5-4-Citizens United ruling and disregarding congressional findings for the key enforcement mechanisms of the landmark Voting Rights Act in the Shelby County ruling and most recently in Alexander v. South Carolina State Conference of the NAACP.
While there have been some earlier precedents that recognized some limited elements of Unitary Executive Theory, as with Myers v. US (1926) where the Supreme Court ruled that Congress could not require Senate advice and consent before a president could remove a presidential appointee to a purely executive branch role. But less than a decade later, in Humphrey’s Executor v. United States, the Court clarified that a president cannot unilaterally remove appointees to a quasi-legislative or quasi-judicial administrative body without following the rules–and reasons–specified by Congress.
It is that precedent, which helped protect the creation of independent agencies, like the Federal Trade Commission, that has been assailed by the Heritage Foundation and Leo’s Federalist Society long before Trump rose in power. One of the primary advocates for reversing Humphrey’s Executor was Justice Antonin Scalia, who was one of the early advisors to the Federalist Society and a right-wing movement operative before Ronald Reagan named him to the DC Circuit and then the Supreme Court. For example, in Morrison v. Olson (1988), the Court upheld the independent counsel statute, which was one of the post-Watergate reforms to address Richard Nixon’s efforts to politicize the Justice Department to shield himself from investigation and prosecution for his crimes, but Scalia’s lone dissent contended that the provision violated the Unitary Executive Theory. At that time, even traditional “conservatives” like Chief Justice William Rehnquist, Justice Byron White, and others disagreed.
Fast forward to July 2024, and we see Justice Clarence Thomas pushing that theory in his concurrence in the immunity decree, basically instructing Judge Aileen Cannon to strike down Jack Smith’s appointment by the Attorney General as a special prosecutor to investigate Trump’s alleged crimes under this theory. Just days later, she embraced that outlier argument to dismiss all charges against Trump in the classified documents retention and cover-up prosecution.
But Thomas’ solo opinion and Cannon’s unilateral efforts to frustrate the criminal prosecution of Trump are not as isolated as they may seem. That is because the faction dominating the Supreme Court, helmed by Chief Justice John Roberts, has been choosing cases to move in that same direction. They have been acting in alignment with Leo’s boast that the Court was at the precipice of resurrecting what he called the “structural constitution” that would reverse legal precedents he and his backers dislike. To take just two examples of how it would be imprudent to believe the Court would impede a Trump administration that fired thousand of federal employees under the “Schedule F” plan concocted by people now leading the Project 2025 agenda:
— In Seila Law v. CFPB (2020), Chief Justice John Roberts wrote an opinion striking down restrictions on the President’s ability to remove the director of the Consumer Financial Protection Board
— And in Loper Bright (2024), the 6-3 Court overturned the Chevron precedent which required judicial deference to agency expertise in interpreting statutes.
Some might contend that the latter ruling is contrary to the Unitary Executive Theory because it effectively limits agency power by assailing the so-called “administrative state,” but it is actually harmonious with that theory. That is because it says courts do not have to defer to agency staff findings while the Schedule F plans would also allow a president to remove agency staff without regard to expertise or merit. Both strains represent a fundamental hostility to the federal civilian workforce, which is one of the most racially diverse workforces in the country. The federal workforce is also one that is staffed based on merit and qualifications in order to advance the public good rather than a spoils system of rewards for partisan political loyalists whose experience does not necessarily qualify them for positions of public trust. It also helps ensure they will follow the law and science for the public good rather than distorting the law and science to advance a president’s personal ambition and whims. Both cases allow a right-wing president and right-wing courts to constrain federal agencies and the deployment of their expertise.
Notably, right-wing justices on the Supreme Court today, especially Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, have expressed support for an expansive Unitary Executive Theory in their writings and opinions.
And, Project 2025 expressly envisions a Trump administration unilaterally declaring that Humphrey’s Executor is not valid. That would be effectuated by firing appointees to independent boards and ordering the firing of independent counsels, for example. It also envisions unilateral action by a president to close agencies at will or whim, such as the Consumer Financial Protection Board and other such entities.
Trump Appointed Federal Court Justices
MOVING THE U.S. TOWARD A CHRISTIAN NATIONALIST OR THEOCRATICALLY-ALIGNED NATION
Also central to the Project 2025 plan during the second Trump term is the ambition for remaking America as a Christian Nationalist nation defining the only true, valid interpretation of the U.S. Constitution to be one that attributes all rights as originating from God through reinterpreting our Constitution in alignment with an inaccurate view of America being founded as a godly nation. In recent decades, right-wing activists have revived what are essentially “Natural Law” theories as a basis for interpreting the Constitution. Important figures in this movement include:
— Hadley Arkes: Author of “Beyond the Constitution” and “Natural Rights and the Right to Choose”
— Robert George: Princeton professor and author of “In Defense of Natural Law”
— Clarence Thomas: Supreme Court Justice who has invoked Natural Law in his jurisprudence
— Adrian Vermeule: Harvard Law School Professor who draws on Catholic political theology to advocate for an “integralist” view in which church and state work together to define morality and in turn, rule of law.
Project 2025 is replete with plans consistent with this approach to the law, though it does not mention the phrase “Natural Law.” For example, one of the Four Promises of Project 2025 is to “Secure Our God-Given Right to Enjoy the ‘Blessings of Liberty,’” which includes the “pursuit of happiness,” which Project 2025 redefines to mean “the pursuit of blessedness,” which it describes as man’s right to live “as his Creator ordains.” Project 2025 asserts that the “Constitution grants each of us the liberty to do not what we want, but what we ought.” This kind of language (other than the blessings of liberty) appears nowhere in the Constitution, but it is being read into it, not just by Project 2025 but by powerful jurists.
Project 2025 explicitly aims to build on the Court’s 6-3 ruling in Dobbs to ban abortion nationally. For example, it plans to deploy the Comstock Act to bar the mailing of abortion drugs by noting that with the reversal of Roe v. Wade “there is now no federal prohibition” on criminalizing the mailing of abortion drugs. Project 2025 also anticipates that there is now no judicial obstacle to revoking the FDA’s approval of abortion drugs, a revocation that would undoubtedly be aided by the installation of Trumpist personnel at the top of that agency and in other key roles. Indeed, Project 2025 envisions unilateral disregard for the federal Vacancies Act by installing nominees into Acting roles while their nominations are pending, which Congress has barred by statute in order to protect its Advice and Consent role.
Project 2025 also assails the protections for women’s health provided by EMTALA, even as the Court awaits a coming lower court ruling on the application of those protections in states like Idaho that have restricted abortions to circumstances where a woman is on the brink of death. Project 2025 envisions the president “deploying existing federal powers to protect innocent life and vigorously complying with statutory bans on the federal funding of abortion” and notes that his allies “should ardently pursue these pro-life and pro-family policies while recognizing the many women who find themselves in immensely difficult and often tragic situations and the heroism of every choice to become a mother” (emphasis added).
That is, the Project anticipates with Roe reversed that the federal government can pursue policies that place women who are citizens of the U.S. in immensely difficult and often tragic circumstances in order to advance the religious belief of some and their agenda that rights begin at conception–a doctrine dubbed “fetal personhood”—and that these rights trump women’s lives and health. Accordingly, Project 2025 envisions restrictions on what it calls “abortion tourism” along with punishing states, like California expressly, for allowing federal funds to be used to aid abortion or to fund health care at Planned Parenthood. It envisions that the Supreme Court will not stand in the way of these restrictions, along with others that challenge private health plans under ERISA, limit the provision of abortions through the VA, and more.
The scope of Project 2025’s effort to advance religious opposition to abortion as binding law includes targeting contraception as well. Under Clarence Thomas’ dissent in Planned Parenthood v. Casey more than 30 years ago and in accordance with his concurrence in the Dobbs case, constitutional protections for access contraception is also at risk under the hostile reasoning deployed by Samuel Alito. To that end, Project 2025 envisions an array of changes in policy to limit contraception–even barring references to “condoms” in women’s preventive health materials along with prioritizing the contraceptive preference of one particular religion by promoting the rhythm method–rebranded as “fertility awareness”—as federal policy.
Similarly, Project 2025 advances an array of plans hostile to the rights of LGBTQ+ Americans–even efforts to erase them from programs and protections–again in alignment with the doctrine of some religions. These changes–in accord with a 6-3 Court that has used its powers to allow religious belief to be a sword against equality and anti-discrimination laws–anticipate that the courts will not protect the rights of LGBTQ+ Americans. Indeed, the Project emphasizes that heterosexual families “are the foundation of a well-ordered nation and healthy society,” disparages gay marriages as unstable, and emphasizes the importance of a “bread-winning father” and not a “neutral parent” for children. It even uses a religious conception of the family to assail in vitro fertilization techniques that are used to promote physically healthy children, by directing that because “every child has a right to a mother and father, three-parent embryo creation and human cloning research should be banned.”
These are just some of many areas in which Project 2025 is grounded in a Christian Nationalist and theocratic orientation toward who has rights or whose rights matter most, building on the theocratic-aligned rulings of the 6-3 U.S. Supreme Court, which has empowered its agenda.
Notably, the Supreme Court’s right-wing majority today includes justices who embrace Natural Law-style thinking, especially Clarence Thomas, Samuel Alito, and Neil Gorsuch. They have shown a willingness to overturn precedents and strike down laws in the name of natural rights and their notions of morality, and in essence an eagerness to impose their religious views as binding law.
The 6-3 Court is poised to overturn Griswold and Obergefell in the coming years, eliminating constitutional protections for access to contraception as well as protections for marriage equality and gay rights. The 6-3 court could also use any number of cases working their way to its docket to impose fetal personhood as integral to constitutional law by declaring that the Fourteenth Amendment’s protections begin in the womb and/or reading the Declaration of Independence’s statement about life, liberty, and the pursuit of happiness as a guarantee of a right to life from the moment of conception. Such cases are being instigated by state Attorneys General who are part of groups like the Republican Attorneys General Association, whose biggest funder by far is Leonard Leo-tied groups, as well as other groups aligned with Leo’s agenda, like the Alliance Defending Freedom. Such cases could come to the Court through judge-shopping in federal courts or via state courts.
In sum, the 6-3 Supreme Court has enabled the conditions for the Project 2025 agenda to be implemented and the Court will not be a backstop against the MAGA agenda but instead will likely be an active accomplice or at the very least a passive bystander that takes no action to stop the extremism.