Trump is doing something he can’t do to Congress. Trump is “leap frogging” lower courts to the Supreme Court.
Andrew Chung summed Trump’s motives for taking this step in a tweet:
To counter legal roadblocks to some of its most high-profile and contested policies, the Trump administration is leapfrogging over lower courts and heading to the U.S. Supreme Court https://t.co/ZanzBgg0GJ
— Andrew Chung (@andrew_chung_) February 1, 2018
As Chung wrote in his Reuters article on the subject, this is a rare step. The fact that the Trump administration took that approach four times in one year is striking.
“In the last year, the Justice Department sought to bypass lower courts four times using varying legal procedures in several high-profile cases, most recently to defend the administration’s right to end the Deferred Action for Childhood Arrivals, or DACA, program.”
“Administration officials “think they’ll do better in the Supreme Court because it is more conservative than the average circuit (appeals) court,” said John McGinnis, a professor at the Northwestern University Pritzker School of Law.”
In short, the lower courts have mostly ruled against the Trump administration on key areas of its policy. It’s very likely that Trump has less high minded reasons for going this route. Wins mean good headlines. They mean the mainstream media will have to give him credit. A win also means he can tell his cheering followers that policies like Muslim bans and forcing immigrant women to complete pregnancies against their will is preserving the rule of law.
So Trump is doing the very thing he accuses opponents of his policies of doing: he is court shopping, or trying to get the case heard in a sympathetic court.
While bypassing the lower courts is ultimately about shopping for a court that is more likely to rule in one’s favor, there is a bit more involved. This step is rarely taken because, as noted by Chung, “Attempts to bypass lower courts are generally considered long-shots, as the court only takes up such requests when the case is deemed to be of “imperative public importance” warranting immediate review.”
“Imperative public importance” is the legal standard, under Supreme Court Rule 11, that makes by-passing the lower courts possible.
For this strategy to succeed, one must show the court that “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.”
Kevin Russell at Scotusblog, dug into this a bit deeper noting that, at least until now, the SCOTUS has stuck to the standard “granting cert. before judgment in only a handful of cases over the past seventy-five years.”
Again, the Trump administration employed this tactic four times in one year. That coincides with Chung’s observation that bypassing the lower courts is a long-shot strategy, albeit with the sort of rewards that appeal to Trump like getting what he wants and getting the positive imagery that goes with a Trump wins headline vs. one that says his policy is unconstitutional.
Aside from avoiding defeat in the lower courts (I say this based on the record so far), the Trump administration effectively disarms opponents because they can’t use lower court opinions and the reasons for them to build on winning arguments and avoid making weaker arguments.
But even that doesn’t explain why the administration would resort to long shots in challenges to policies that are cornerstones to Trump’s overall agenda.
The reason is Trump loses mightily in the lower courts, but as Chung noted those rulings were not only on “significant executive actions” but “often applied nationwide.” That means there is little evidence of Trump’s policies for Trump or his supporters to see and brag about.
In the case of DACA, there is more to it than pleasing supporters, or even Trump’s obsession with erasing President Obama’s legacy. Trump’s racist comments prior to the shutdown, followed by the anti-immigrant and racist comments he made in his State of the Union address, gave defenders of DACA plenty of ammunition to argue that his decision to end DACA is based on racial animus. That would be toxic to any argument he might offer because denying immigration because of race is unconstitutional.
His SOTU remarks outlined an immigration system in which race will be a dominant, if not determining, factor in Trump’s vision of a “merit based” immigration system. While what Trump wants to do is irrelevant to current law and therefore to the current legal question; ignoring Trump’s stunningly racist and un-American agenda on immigration is akin to ignoring the pink elephant in the room.
Trump has another problem given the Supreme Court’s requirements for allowing a bypass of the lower courts. Somehow, he must convince the courts that deporting 800,000 law abiding people who are productive members of our society has anything to do with meeting a public interest. Of course, the same is true about his effort to ban transgender Americans from serving in the military and forcing immigrant women to complete a pregnancy against their will.
The greater lesson in Trump’s desire to use a long shot tactic to bypass the courts is seen in the way he has seriously damaged political culture, norms and institutions. Just as skipping steps in the process of law making weakens democratic norms as we know them, the judiciary’s independence is damaged if the government can simply prevent people from having their day in court unless it’s in a court that is sympathetic to the government.
Much of this past year, Trump did the same thing in the political sphere. He went with high risk tactics that experts were certain he would never use because historically, those tactics were a suicide mission.
For the most part, he lost battles – most notably several attempts to repeal Obamacare. But, that was not without a cost. We saw a change in process, where bills to repeal Obamacare and later, the ultimately passed “tax reform” that was really a tax scam without hearings and lawmakers having no time to read bills.
McConnell didn’t allow for amendments and debate was virtually non-existent.
Trump’s attempt to bypass the lower courts on DACA may further damage the judiciary’s independence. Trump has been relentless in his attacks on the independent judiciary, with nominations that by passed the traditional blue slip system and ignored recommendations by the ABA. When it comes to nominating a record number of unqualified people to the bench, Trump has shattered previous records.
By-passing the lower courts is the legal version of skipping a step in the legislative process. What if Trump makes that his go to strategy? It means that the scales of justice that once represented balance between the powers of government and the rights of the people will be permanently tilted in favor of a government that believes some people are more equal than others and corporations are more equal than all of them.