Increasingly, it is clear that the only controls of the unconstitutional acts of the Trump administration will come from the courts. But will Roberts conservative, with three judges appointed by Donald Trump, will he be willing to stop the president's illegal acts? The answer is not clear, although a Friday afternoon decision is disturbing and indicates that the application of the Constitution against the Trump administration may depend on a judge, Amy CONEY BARRETT.
On Friday, the case involved that the Trump administration cuts $ 65 million in teacher training subsidies from the American Department of Education in February. Justification? The subsidies included money for diversity, equity and inclusion initiatives.
California and other states have brought a Federal Boston legal action to restore funding. The federal judge granted a temporary prohibition order against the Trump administration, concluding that his fund limit was probably illegal and unconstitutional. The money for teacher training had been assigned by the congress in a federal law. The president has no constitutional authority to usurp the power of expenses of the congress. In addition, there is a federal law, the 1974 law on the control of the 1974 deduction which prohibits presidents from refusing to spend money affected by the congress.
In a decision 5-4, the Supreme Court reversed the district court and raised the temporary ban order. The majority included judges Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Chief judge John G. Roberts Jr. joined the three liberal judges, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, in dissent.
Striking, The majority opinion of three pages not signed Does not dispute that the fund threshold was unconstitutional and illegal. As Kagan said in a dissent, “nowhere in its articles, the government defends the legality of canceling the education subsidies in question here.” Instead, the majority suggested that the federal government would be injured by disbursing the money because, if it finally prevailed in the dispute, it would be unlikely to recover the funds.
The majority also suggested that the appropriate forum for the case would be an action for breach of contract to the American Federal Court for complaints, and not a Federal District Court. The objective would probably no longer be on the way the government raped the Constitution and the law on the control of deduction.
These are disturbing arguments because they would considerably limit the authority of the federal courts to prevent the president from refusing unconstitutionally and illegally to spend money appropriate by federal law. And that would mean giving a huge change of power to give a huge change of power on the federal expenses of the Congress to the President.
Jackson wrote a powerful dissent explaining that temporary prohibition orders are generally not revisable on appeal, that the government was entitled to a recovery only if there could be an emergency situation which could cause irreparable damage and that it has long been established that federal courts have the power to stop illegal federal cuts. She wrote: “It is beyond the confusing that a majority of judges conceive of the government's application as an urgence. It is also confusing that anyone is convinced that the actions promote the government when the government does not even maintain that the lower courts have made an error by concluding that it probably behaved illegally.”
What is also confusing is that it barely a few weeks ago, on March 5, the Supreme Court reached the apparently opposed conclusion in another case involving the Trump administration of the Federal Funds. In State Department against AIDS Vaccine Advocacy CoalitionThe court, 5-4, judged that the Federal District Court had the power to order the Trump administration to restore the funding of the American agency for international development.
In this case, Barrett joined the majority, with Roberts, Sotomayor, Kagan and Jackson, and Alito wrote a dazzling dissent, rejecting the authority of the federal courts to order the funds of the USAID.
We do not know what difference Barrett has seen between these two cases because she has not written any opinions. But that seems to indicate that there are four judges (Thomas, Alito, Gorsuch and Kavanaugh) who will be with Trump at least in this area, and four who will be against the president (Roberts, Sotomayor, Kagan and Jackson). If and when the president can apparently reduce funds that will turn Barrett's opinions.
This is not a difficult constitutional question. The president has no power under the Constitution or no federal law to block money expenditure appropriate by the congress.
There are several other emergency petitions deposited by the Trump administration pending before the Supreme Court.
One implies the assertion of the administration that the federal courts do not have the power to order the release of a man of a maximum security prison in Salvador even when the government concedes that it was informed. Another implies an ordinance of a judge of the Federal District Court blocking the President's efforts to use the Extraterrestrial Enemies Act of 1798 to justify the displacement of more than 200 Venezuelans to this same prison without regular procedure. However, another administrative petition is to know whether the federal courts can issue a national injunction ending the citizenship of the birth law for people born in the United States to parents who are not citizens. And another seeks to cancel an order from the Federal Court which declared that Trump had acted illegally in the dismissal of individuals in six federal agencies.
The Supreme Court will undoubtedly act quickly on these petitions. These decisions will provide a strong indication of whether the judges will verify the unconstitutional acts of the Trump administration. What if the court does not apply the Constitution, then who will do it?
Erwin Chemerinsky is dean of the Faculty of Law of the Berkeley. His latest book is “No Democracy eternally lasts: how the Constitution threatens the United States”.
