US courts and Trump’s domestic agenda

The United States political system is based on a separation of powers between the Executive Branch, whose head is the President, the Legislature which consists of two chambers—the Senate and the House of Representatives and the Judiciary at whose apex is the country’s Supreme Court. Like any other country it has established a set of laws and conventions to govern the inter-se relations between the three branches of government.

One convention which distinguishes the US from India, for instance, is that the US Supreme Court Chief Justice and the other members of the Court’s Bench are invited by the Speaker of the House of Representatives to attend the President’s address to a Joint Session of the two Houses, or in common parlance, Congress. It is not mandatory for the judges to accept the invitation but some do.

Recently, when President Donald Trump addressed the Joint Session on March 4, Chief Justice John Roberts and Justices Elena Kagan, Brett Kavanaugh and Amy Coney Barrett attended. Some of the judges do not like doing so and do not attend; on this occasion five did not—the strength of the Court is nine, including the Chief Justice. Some others do so but often vent their frustration at some of the President’s addresses being out and out political and polarizing. In a recent report a famous US newspaper noted, “I’m not sure why we are there,” Chief Justice Roberts, who was appointed by President George W. Bush, said in 2010, adding: “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according to the requirements of protocol, has to sit there expressionless, I think, is very troubling”. However, these feelings have not prevented Roberts from continuing to attend these addresses.

No motives are attributed to those judges who attend this event and those who do not. As is known US Supreme Court judges are appointed for life and it is for them to choose to step down when they find that their health does not permit their continuance in office. In such a situation the nomination of a person to the Supreme Court Bench, if a vacancy arises, is taken very seriously by a President. This is because it gives him an opportunity to shape the ideological contours of the country long after his term is over. In his first term, Trump was able to nominate and successfully secure Senate approval of three judges. Naturally, he chose persons who pursued a conservative judicial philosophy.

This has made the Court conservative with a 6-3 majority. This has led to the reversal of many crucial Court decisions going back to half a century. The most important of these was that of Roe vs Wade regarding abortion rights. The conservative majority has also, in a significant judgement regarding Presidential immunity from prosecution, given a judgement last year which has now made it virtually impossible for criminally prosecuting a President for any acts he may order or commit after he has completed his term. During his term a US President, like Heads of States of many countries, cannot be prosecuted.

Even as the Court has a conservative 6-3 majority it is not necessary that all the 6 conservative judges will vote as a bloc on each issue. It is also not necessary that a judge who owes his/her appointment to a sitting President will judge in favour of his administration in all matters that come before the Court. A particular feature of the US Supreme Court is that all 9 judges decide each case that comes before the Court. The Trump administration had to face the fact of two conservative judges not siding with their view in a crucial matter to Trump and his comrade Elon Musk.

The Court decided by a majority of 5-4 in a matter relating to US Agency for International Development (USAID) in its opinion given on March 5. The Chief Justice and Justice Amy Coney Barrett went along with the three liberal judges. This decision does not mean that the final judicial word has been said on Trump and Musk’s great desire to severely curtail USAID’s activities abroad and reduce its ten thousand staff to around three hundred. However, the Court’s decision is being considered by many that Trump may face resistance in implementing some parts of his drastic domestic agenda from the judicial branch.

In the instant case Washington DC based federal District Judge Amir Ali gave a ‘Temporary Restraining Order’, on February 13 as the Court majority opinion notes “enjoining the Government from enforcing directives pausing disbursements of foreign development assistance funds”. When Amir Ali found that the US government was dragging its feet in implementing his order he ordered on February 25 that disbursements that had been paused for work completed by USAID contractors till February 13 should be made by 23.59 hours the next day.

The US government requested Supreme Court Chief Justice Roberts for a stay. He gave an administrative stay and then the case was heard subsequently. In the March 5 order the majority rejected the government’s plea for a stay of the District Judge’s order but instructed him thus: “Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfil to ensure compliance with the temporary restraining order, with due regard to any compliance timelines”. The minority judges are livid with the majority view as no doubt would the Trump administration be. This is especially as Trump has considered his approach to USAID as illustrative with his intention to make the US government efficient and free of fraud.

Future developments in this matter which will take place in the courts after I have written these lines may have an impact on Trump’s domestic agenda.