Dem
47
GOP
53
Every day, there are many news stories about court battles centered on the policies of the Trump administration. More often than not, we do not write about those stories. The reason is that there are a lot of cases going on, and there are many levels of appeal in the American judicial system. If you'd like us to put a finer point on it, there are currently at least 94 cases. Even if we just focused on final rulings (as opposed to injunctions, motions, counter-motions, etc.), and even if there are only a couple of appeals per case, that's still nearly 300 different "final" rulings, most of which aren't actually final.
This said, during Trump v1.0, the administration's lose:win ratio was around 2:1, for a batting average of .333. Thus far, for Trump v2.0, it's more like 3:1, for a much worse batting average of .250. Quite often, the losses come in bunches. For example, on Tuesday, the White House lost three times, in three different courts, in just 90 minutes. Of course, all of those losses will be appealed.
We do take notice of particularly significant decisions, and one of those came down yesterday. Judge William Alsup (a Bill Clinton appointee) has been overseeing the case involving the mass firings from the Office of Personnel Management (OPM). That's when OPM advised every federal agency that all probationary employees were to be terminated, potentially putting between 100,000 and 200,000 people out of workâsome of them "probationary" because they had just been promoted.
Yesterday, Alsup granted an injunction against the firings, until he can hold hearings into the matter. However, he gave a pretty good preview of what his final ruling will be, declaring:
The Office of Personnel Management does not have any authority whatsoever under any statute in the history of the universe, to hire and fire employees within another agency. It can hire its own employees, yes. Can fire them. But it cannot order or direct some other agency to do so. OPM has no authority to tell any agency in the United States government, other than itself, who they can hire and who they can fire, period. So on the merits, I think, we start with that important proposition.
It would seem to be improbable that the government's lawyers will be able to get Alsup to change his mind. That said, once he rules against the administration, then it will be time for yet another appeal.
In the end, there are at least two questions that require answers before we can know how much of a bulwark against authoritarianism the judicial branch is actually going to be. The first of those is: How often will the Supreme Court, which is two-thirds conservative, and one-third appointed by Trump, stand up to him when he tramples on the Constitution? The second of those is: Once Trump gets a ruling that is adverse, and that cannot be appealed any further, will he abide by it? A potential third question is: If Trump ignores the courts, what then?
The first round of answers to these questions may be coming soon. One of the first things that the Trump administration did, on taking office, was freeze the USAID funding. That means that one of the very first lawsuits filed was an attempt to unfreeze the USAID funding. And so it is that this has become the first question about the limits of Trump's authority to make it to the Supreme Court's docket. On Wednesday, Chief Justice John Roberts put a hold on a lower-court order to unfreeze the funds, and told both sides to submit briefs. Those briefs are due at noon today.
You never know how long SCOTUS will take to make a decision. If the justices already know which way they are leaning, and if they plan to issue one of their famous unsigned orders, we could have an answer today. Or, it could be next week, or next month, or even longer, particularly if the Supremes kick the matter back to a lower court. We tend to think Roberts & Co. will want to make a statement, so the White House gets a clear sense of the ground rules (whatever the Supremes think they are). If so, that would argue for a decision that is pretty quick and pretty decisive. However, that's just our guess. In any case, it bears watching. (Z)