by Neil H. Buchanan
Last week, the U.S. Supreme Court issued a pair of decisions in what were somewhat misleadingly known as the "Trump tax cases." I then wrote a column here on Dorf on Law under an oh-so-clever title -- "The Supreme Court ... yawn ... Rules on Presidential Tax Returns" -- in which I argued that there was not really much of interest in those cases, at least not in the sense that we usually think of Supreme Court cases as being important.
That is, I argued that unlike the DACA ("Dreamers") case this term, or Obergefell (same-sex marriage) a few years ago, the immediate import of the tax cases was essentially nothing. Even if the Court had ruled much more forcefully against Trump by ordering the immediate transfer of his tax and financial records to Congress and the Manhattan DA, it is not at all obvious that the world would have been meaningfully better or worse for either Trump or his opponents. In fact, I argued that Democrats might even be better off in a world in which Trump insists on acting like he has a lot of bad things to hide than in one where we get to see what he is hiding (even if it is truly bad).
That was my reason for including the sarcastic "... yawn ..." in the title of my column, even though I did note that of course Trump has reason to worry (as a result of the Vance case) that the Manhattan DA (after yet further delay) will almost certainly come into possession of evidence of serious felonies. We spent months anticipating the Court's rulings on these two cases because of their supposedly explosive political import, yet when we actually saw the rulings it all seemed so anticlimactic, at least in the immediate sense.
In the days since then, I have been reading and watching the continuing commentary about those cases. I also noted a comment on my column by Professor Marty Lederman that the cases are about a wide range of issues, which is why I said above that calling these the Trump tax cases is "somewhat misleading." There are, in fact, plenty of reasons to applaud the Court's rulings here, in particular by contrast to what the Court's conservatives could have ruled, as I will explain presently.
Even so, I continue to think that even the non-tax aspects of these cases give us very little reason to think that the Court is going to act as a meaningful check on Trump's efforts to destroy the rule of law. In the end, the laudatory aspects of the Trump tax cases -- and they truly are to be applauded -- should not in any way give us confidence that the Supreme Court will save us from a Trumpian destruction of the American constitutional system.
Before I turn to the good aspects of the cases, I should emphasize just how much the Court "made stuff up" in the Mazars case, which was the case involving congressional subpoenas that required two banks to produce "the financial information of the President, his children, their
immediate family members, and several affiliated business entities[, specifically] any document related to
account activity, due diligence, foreign transactions, business
statements, debt schedules, statements of net worth, tax returns, and
suspicious activity" and "similar financial information with respect to more than a dozen business entities associated with the President."
Happily, the Court did not adopt Clarence Thomas's argument that amounts to saying that the executive should be allowed to get away with crimes so long as the president does enough illegal things that it would become a burden to defend all of them. Still, the 7-2 decision of the Court did announce a new four-prong standard that allows the Administration to assert in legal language what Trump calls "presidential harassment."
As I noted last Thursday, this is annoying but potentially not much of a problem, because the invented-from-whole-cloth standard is something that future congressional subpoena writers can use as a road map. On the other hand, this does give future courts more wiggle room to invalidate even carefully written subpoenas, so the Court's decision almost surely made things worse. This is another case where even the Court's four non-conservatives went along with a line of nonsense that was simply unnecessary, ultimately further strengthening Trump's power.
Even so, commentators have lauded the Court for saying in both Mazars and Vance that the president's powers are not absolute. As but one example, Neal Katyal, former Acting Solicitor General in 2010-11 and a regular commentator on cable news shows (and frequent op-ed columnist for The Washington Post), has made especially impassioned (and convincing) statements to the effect that nothing short of the rule of law was at stake in these cases.
The reason that this argument feels so convincing is that the Court could have done real damage to the constitutional system if it had accepted Trump's lawyers arguments for "absolute immunity." When the Court held that the president is no different from anyone else who might try to resist a prosecutor's demands -- not powerless against them, but not having any additional arguments to fight subpoenas beyond those available to any other citizen -- that is important.
It is important, however, only because of how extreme Trump's claims were. Until very recently, one would not have imagined that it would be necessary for the United States Supreme Court to say that a president does not have the power to shield from discovery everything that might have something to do with him, his family, or his businesses. But yes, now that Trump has made those claims, it is heartening that he was so soundly slapped down by the Court, including by his two appointees. Indeed, in restating the fundamental idea that no one is above the law, all nine justices agreed that the Trumpian position was wrong.
And this is the way in which a Supreme Court opinion can be important, not in the immediate sense of determining who can get married or who will be deported but in determining how our government will function (or not) in the future. The way in which Vance and Mazars are important is not in being tax cases but in being limitations on an overreaching president. And that is all to the good.
Why is that not good enough to make me feel some sense of confidence that the courts will prevent Trump's upcoming extreme power grabs (rejecting the election results, most prominently)? Did the Court not just show that it stands foursquare against an out-of-control president? Did it not validate the Chief Justice's claim that there are not Republican judges and Democratic judges? Did it not show that the Third Branch will save the republic?
Maybe, but probably not. As Leah Litman pointed out in a Post op-ed on Sunday, this term's Court decisions that were labeled as "liberal" -- prominently the DACA case and the LGBTQ employment discrimination case -- were yet again situations in which John Roberts (sometimes joined by one or more of his hyper-conservative brethren) saved the Republicans from themselves. Did down-ballot Republicans, including the vulnerable incumbents on whom control of the Senate rides, truly want to be defending their own party's attacks on the most sympathetic immigrants in the country? Did they want to say why it should be acceptable for businesses to fire people for being LGBTQ -- while running for reelection from states like Colorado, Maine, or even North Carolina?
Remember also that Roberts made sure that the Court would not have to rule this year on the Trump Administration's claim -- backed by many, many of the most rabid Republicans -- that the Affordable Care Act must be struck down in its entirety. Again, does an incumbent senator from Arizona, Georgia, or Texas want to be explaining during a pandemic that her/his party has thrown tens of millions of Americans to the wolves, even as their party still has no alternative legislation to offer? As Litman put it, "the conservatives may have won by losing."
What is ultimately at stake here is the rule of law. Professor Eric Posner argues in a recent op-ed in The New York Times that nothing that Trump has done is illegal, at least not exactly: "[T]he president has not yet in a clear sense violated the laws or Constitution of the United States." Posner is a major proponent of expansive executive authority, but I was nonetheless taken aback by his blithe assertion that "Trump has not tried to expand his powers," noting that Trump has not (yet?) mimicked Viktor Orban of Hungary's adoption of "the demagogue’s playbook by demanding and obtaining near-dictatorial powers from the legislature."
That Trump has not to this point gone Full Orban, however, is hardly proof that Trump is not radically attempting to expand his powers. His abuse of the pardon power has been particularly corrupt, of course, but Posner's claim that Trump is not "in a clear sense" acting unconstitutionally is true only because we have unquestioningly and inappropriately accepted a reading of the pardon clause that is more expansive than anyone could ever justify.
If "Congress shall make no law ... abridging the freedom of
speech" has exceptions, why do we think that "The President ... shall have Power to grant Reprieves and Pardons" is unreviewable and the power therein granted is unlimited? Trump has not "in a clear sense" acted unconstitutionally only because he simply is not being stopped by the courts or Congress.
And Congress's acquiescence is not merely in the Republican Senate's refusal to take the impeachment power seriously (which is where, for example, Trump's commutation of Roger Stone's sentence would supposedly have been handled, if we insist on not recognizing directly limits on the pardon power). It is also in Trump's abuse of the power to declare emergencies and then to redirect appropriated funds, which is possible because of the (Court-assisted) rule by which the president himself can veto Congress's attempt to limit that abuse.
The reason that Litman's point is important to my argument, then, is that the Court's hyper-conservatives did not actually do the Republicans any harm in failing to rule in favor of Trump in Vance or Mazars. The question is whether their high-minded reminder that no one is above the law applies more broadly. We have good reason to suspect that it will not.
From the gerrymandering cases to voting rights, the Court has found ways to make sure that Republicans continue to get what they need to maintain power. If Trump tries to declare that this November's elections were rigged, the Court could simply invoke the Political Question Doctrine, saying that it is not the judiciary's role to step into that fight. Congress, after all, has the formal power to impeach, so it is not "in a clear sense" unconstitutional for Trump to do anything he wants and then for Republicans in the Senate to refuse to stop him. It would all be perfectly legal in this narrow sense.
Yet that is exactly the problem that the Republicans' actions over the last generation have exposed. You can lose the rule of law without ever formally violating the law. Hitler, after all, took power initially through legal means, and then the laws were changed to keep him in power. That is what Orban is doing. That is even what Vladimir Putin did when he came to power in post-Soviet Russia.
In Vance, the Court held that the president is like any other citizen in having to respond to subpoenas. In an election case, the president is not like any other citizen. Indeed, that is why the Mazars outcome was so much worse than in Vance, because the Court said there that we have to give the president special latitude.
How difficult would it be for the Court's five Republican appointees to find a way to distinguish its laudatory statements in the Trump tax cases from anything that the Republicans would need the Court to do to keep Trump in power? The question all but answers itself.