In Session: The Case of the Courts and the President

Editor’s note: John Glenn College of Public Affairs Faculty Emeritus Charles Wise, an expert in public law and public administration, said history offers insight into ramifications of any potential clash between our nation’s judiciary and President Donald Trump. He shares with us his expertise on the topic.

There are two presidencies we can refer to: One was Franklin D. Roosevelt and the other was Andrew Jackson. 

Roosevelt’s case was in regard to the New Deal legislation that he proposed and Congress passed. The Supreme Court was issuing decisions that said a lot of this was unconstitutional — that it violated private property and violated the commerce clause. Roosevelt objected to that. He didn’t go ahead and try to implement these laws himself, but he tried making proposals to add members to the Supreme Court above nine so he would have opportunity to nominate justices who would agree with him. 

It’s changed. For a very long time in history, the court was mostly supportive of presidential directives, but then as we get into more recent presidencies — one case in the Harry S. Truman administration, and then in the George W. Bush administration, with regard to civil rights and national security cases — where the court in general has been more restrictive, requiring a clear statement of Congressional authorization.

They’re specific to the particular laws and circumstances in play. There are a number of precedents that the Supreme Court has issued with regard to recent presidents, including Trump and Joe Biden, in terms of their executive orders and particularly versus the administrative agencies that had to implement the orders.

Some of those precedents support what presidents have done and some have negated what presidents have done, saying the action was unconstitutional or violated some federal statute. 

Increasingly, the administrative agency must have a statement of clear authority from Congress in statute to implement action ordered by a president. There also are precedents that the administration will cite that support presidential authority. 

Trump’s decision to fire Gwynne Wilcox from the National Labor Relations Board in the beginning of his term involves a clash between the branches of government that will reverberate across the government. 

In the case of Wilcox vs. Trump and Marvin Kaplan, chair of the National Labor Relations Board, first, the D.C. District Court overturned Trump’s order to fire Wilcox. It rejected his argument that the statute barring the president from summarily dismissing NLRB members unconstitutionally limits the president from controlling the executive branch. The court’s decision reaffirmed the authority of independent agencies and the power of Congress to restrict the president’s removal authority of agency board officials. It also rejected the administrations’ claims for unrestricted presidential authority over any action in the executive branch.

Through appeals that landed in the U.S. Supreme Court, Wilcox is currently removed from office until the case is resolved. Meanwhile, the NLRB has lost its quorum and, hence, its ability to issue decisions.

The importance of the issues confronted in the Wilcox case extend far beyond what happens to the National Labor Relations Board. The issues in this case have much larger implications for the states, as well as many independent agencies within the federal government, and more broadly for the respective powers of the presidency and the Congress. 

Not only are the relative powers of the president and Congress involved in several current cases stemming from the termination of federal employees in USAID, and other agencies, but they are also central to other cases in which administration actions and orders have frozen the expenditure of funds appropriated by several agencies. The case also has large implications for the authority, functioning and autonomy of the many independent agencies within the government authorized in various statutes.

First of all, we have to understand that for the most part, the president doesn’t do these actions himself. He issues an order to an agency to take certain steps, and then the agency has to formulate specific implementation orders. People harmed by those orders then file lawsuits against the agencies and officials in the agencies. That’s the lion’s share of the cases. If the agency was proceeding anyway with implementation that has been ruled unconstitutional or violates other statutes, the courts will be taking action with regard to officials in those agencies.

If the courts eventually decide against them on constitutionality or federal statute grounds, the president and federal agencies will have to decide whether to comply. If they decide not to comply, then it could be termed that we have a constitutional crisis, and the courts will have to decide what to do to try to enforce their orders. 

That could precipitate a clash between federal law enforcement agencies who have to enforce the order. The resulting public reaction would affect whether the administration will pursue its actions.

For example, in the case of Kilmar Abrego Garcia, a Maryland resident mistakenly deported to El Salvador, U.S. District Court Judge Paula Xinis ordered the administration to facilitate his return to the U.S. by March 31; on appeal, the Supreme Court stated that the judge’s order properly required the government to ensure Abrego Garcia’s case is handled as it would have been had he not been improperly sent to El Salvador. However, the Supreme Court stated that Xinis should clarify the directive with due regard for the deference owed to the executive branch in the conduct of foreign affairs. Subsequently Xinis found that the government had done nothing to effectuate Abrego Garcia’s release. Xinis then ordered expedited discovery into whether the government is abiding by her order.

Concurrently, U.S. District Court Judge James E. Baosberg announced he would launch proceedings to determine the extent to which government officials defied his order to temporarily halt deportation flights of Venezuelans (of which Garcia was one) suspected of being gang members. He stated that he would consider whether any officials involved should face criminal contempt charges.

Presidents, their appointees and administrative agencies who want to implement new policy may need to first determine how specific statutes authorize them to do so. If there’s not a clear statute of a previous decision by Congress, then the administration will need to get that approval from Congress before proceeding.

 While obtaining congressional authorization through the lawmaking process involves more than one branch and can be complicated, the country’s founders never meant for government to be simple. 

They thought this would produce deliberative action in which proposers of legislation had to demonstrate widespread public support, and that any threats to people’s freedom would be stopped in such a process.