President Trump bets big on Supreme Court to uphold controversial policies after lower court losses

WASHINGTON – President Donald Trump is betting big on the Supreme Court in 2019 to revive controversial policies on issues ranging from immigration and border security to transgender soldiers in the military.

Seeking to match the success he had at the high court on his immigration travel ban against predominantly Muslim countries last year, Trump is counting on the justices – including two that he picked – to reverse lower court losses at the hands of both liberal and conservative judges.

How the Supreme Court rules on the requests in the coming months will shed light on the justices’ views about executive power, judicial discretion and Trump’s proclivity for upending longstanding policies by whim, or even tweet.

Waiting for word are more than 700,000 undocumented immigrants brought to the United States as children who could be threatened with deportation under Trump’s policy. Also in play are some of the estimated thousands of transgender troops serving in the military and others seeking to join who face a partial ban.

The high court already is slated to hear a dispute over the Trump administration’s effort to ask about citizenship in the 2020 Census. Other cases that could be headed there eventually include Trump’s ban on asylum seekers who enter the country illegally and his threat to withhold federal funds from “sanctuary cities” that do not fully cooperate with immigration authorities.

In most of those cases, the Justice Department took the unusual step of seeking Supreme Court action before lower-court appeals had run their course. The administration railed against local judges issuing nationwide injunctions against Trump’s  policies. But the high court has been loath to jump over lower courts.

“The executive branch is mistaken if it looks to the Supreme Court to provide a quick fix for their litigation problems,” says Peter Margulies, a professor specializing in national security law at Roger Williams University School of Law. “The Supreme Court isn’t designed to be a quick fix.”

Win or lose, the confrontations at the nation’s highest court will shed light on whether
Associate Justices Neil Gorsuch and Brett Kavanaugh, Trump’s two nominees, will make a major difference – or whether the president’s battle with Chief Justice John Roberts over the independence of the federal judiciary will backfire.

Losing streak at lower courts

Trump enters 2019 with a poor track record in the federal courts.

Just as he did early in his battle to limit travelers from majority-Muslim nations, Trump has lost most of his battles with judges on issues ranging from early skirmishes over special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election to the revoking of CNN reporter Jim Acosta’s White House press credential.

More: It’s not just ‘Obama judges’. Here are Republican appointees who have ruled against Trump

“The Trump administration has consistently failed in the lower courts, and they’ve gotten some relief in the Supreme Court,” says Josh Blackman, a professor at South Texas College of Law in Houston who follows the high court closely.

That wasn’t the case on the Deferred Action for Childhood Arrivals program, known as DACA, which has helped more than 700,000 undocumented immigrants avoid deportation and get work permits. Trump sought to end what President Barack Obama began but was swatted down by federal district and appeals court judges who said he lacked the authority to do so.

The Supreme Court refused to block the lower court orders from taking effect but is scheduled to consider hearing the government’s appeal at its Friday conference. If at least four justices agree to take the case, it could be heard in April and decided by the end of June.

Trump hasn’t had better luck at the high court with his asylum ban. After a federal judge blocked his effort to cut off asylum for migrants who enter the country illegally – and before the case went to an appeals court – the Supreme Court narrowly refused, 5-4, to step in. Both of Trump’s high court nominees joined two other conservative justices in dissent.

It probably didn’t help that Trump blasted federal district court Judge Jon Tigar as an “Obama judge” after his initial ruling, later upheld in a 2-1 opinion by federal appeals court Judge Jay Bybee, who was appointed by President George W. Bush.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in response to the president’s criticism. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Roberts later provided the deciding vote against reinstating Trump’s asylum ban, but the issue could reach the Supreme Court later this year or in 2020.

 

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