Rule Of Law Or Rule By Law? SCOTUS Gets Its Chance To Halt Trump’s Rampage—Or Greenlight It

This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

Four critical cases have reached the Supreme Court via its shadow docket in recent weeks. They touch on everything from birthright citizenship and unconstitutional deportations to funding cuts to programs the administration has labeled as “DEI” and the firing of federal employees without cause. 

In each of these cases, the lower courts issued temporary restraining orders (TROs), meaning the government cannot enact its policies until the litigation is resolved; the status quo must remain in place while the courts consider their underlying legal and constitutional arguments. Though the merits of these cases are not yet at issue, in each, if the Roberts Court does not uphold the status quo — maintain birthright citizenship, require due process for deportation proceedings, and prevent unlawful, arbitrary terminations and funding cuts — it could create chaos for the lower courts and for countless Americans fighting to protect their own safety and well-being. In a dark portent of things to come, on April 4 the Court ruled on the first of these, overturning the TRO requiring the government to continue fulfilling DEI-related grants during the active litigation. It was a 5-4 decision, with Roberts joining the liberals.

Trump and Musk are already moving faster than the courts can respond to demolish the parts of American society they deem anathema to their agenda. They’re declaring immigrants — even those here legally — persona non grata, abducting them on the streets and even transferring them out of the country before their lawyers or the courts can act. A federal judge in Washington declared an effort to prevent the transfer of the U.S. Institute of Peace to the General Services Administration moot because it occurred before the plaintiffs could file a motion to prevent it. If the Roberts Court reverses these TROs and directives, it will give the administration far more room to inflict its desired damage on civil society and government.

The outcome of these cases will reveal whether we live in a nation where the Court abides by the rule of law, or whether they will defer to Trump’s unconstitutional efforts to rule by law. That is, the Roberts Court could allow Trump to weaponize the law in service of his power grabs, or the Court could uphold the Constitution and rule of law.

The first of these four cases deals with birthright citizenship. The government claims it is merely asking the Court to limit multiple nationwide injunctions blocking the Trump administration’s executive order that attempts to end birthright citizenship. However, the absence of a nationwide injunction halting this blatantly unconstitutional order form being enforced would mean every noncitizen family welcoming a newborn would have to challenge it themselves and potentially face detention or deportation. What’s worse, right-wing groups filing amicus briefs are already asking the Court to ignore the plain text of the 14^th Amendment, declare that it has been misinterpreted for 150 years, and rule that birthright citizenship is not enshrined in the Constitution.

The second case is being brought by unions attempting to reinstate illegally fired government employees. Here, the Trump administration claims federal employee unions aren’t permitted to sue on their members’ behalf, and that courts lack jurisdiction to deal with the matter. The government asserts that individual employees must challenge their illegal filings with the Merit Systems Protection Board (MSPB) — at the very same time Trump is attempting to dismantle and weaponize this board against workers. This would leave illegally fired employees in a permanent legal limbo. It would also set a precedent for Trump, Musk and their Project 2025 enablers to speed-run the destruction of federal agencies before the courts could even begin to stop the illegal bleeding, causing irreparable damage to programs Americans rely on — like Social Security, food safety inspectors, park rangers, weather scientists, and consumer watchdogs. 

The third case — the one the court issued an order in on Friday — deals with the funding of our public education system. The Court’s right-wing justices, in undoing a TRO, could choose to make it infinitely harder for grant recipients — in this case, teacher training and retention funds — to obtain the money they rely upon, promised by the United States government. This may wellcould create a ripple effect, foisting budget shortfalls on state education systems. It could also set a precedent to make it more difficult for family farmers and small businesses across the country who rely on grants to get the money promised for work they have already done.

The last case relates to the anachronistic Alien Enemies Act designed for times of war. Here, the Roberts Court could remove constraints on the Department of Homeland Security’s obligation to follow the law. This would allow the agency to unconstitutionally detain and remove people merely accused of being war-time invaders (in this case gang members, not military personnel) — without any of the constitutional protections promised by the 4^th, 5^th and 6^th Amendments. If that happens, it won’t be long before an innocent American citizen is mistakenly accused and swiftly deported to a notorious El Salvador prison. The administration has ample authority under the Immigration and Nationality Act to remove people it deems dangerous. But doing so requires judicial findings and due process — constitutional protections that are proving inconvenient for Trump.

We will soon see whether the Roberts Court intends to follow the Constitution or effectively place the powers Trump is asserting above the rule of law. Although the cases’ merits are not yet at issue, overturning the TROs in any of these instances would create extra runway for Trump and Musk to weaponize the law against their opponents in the interim. If these rulings fall the wrong way, it will be a dangerous harbinger of what’s to come.