Author: Henry Wray

With congressional Republicans firmly in Trump’s pocket and an administration stocked with toadies, the federal judiciary stands as the only constraint on his many legally dubious actions. So far, the lower courts have met the challenge as judges across the ideological spectrum frequently rule against his excesses.

Whether the Supreme Court is up to the task remains to be seen. In several preliminary rulings, the Court overturned lower court orders adverse to Trump on technical grounds. While each individual ruling may be defensible, some pundits (but not all) suggest that, taken together, they show a pattern of reluctance by a majority of justices to confront Trump. 

The outrageous deportation of Kilmar Abrego Garcia to El Salvador could be the first direct test of the Court’s resolve. The Supreme Court’s April 10 preliminary ruling in his case is widely viewed as a win for Abrego Garcia; however, the end game remains very much in doubt. The justices agreed with lower courts that Abrego Garcia should be brought back to the United States but were less than supportive of the judiciary ordering that he must be returned.

The Court’s apparently unanimous per curium opinion acknowledged that Abrego Garcia’s deportation was illegal since it violated an immigration agency order prohibiting sending him to El Salvador, and the opinion confirmed that he had wrongly been denied due process.^[1]The Government conceded both points, admitting that his deportation resulted from what it euphemistically called an “administrative error.” It also affirmed a district judge’s order that the Government pursue getting him back to the United States.

From there the opinion veered into ambiguity. While concluding that the district judge appropriately ordered the Government to “facilitate” Abrego Garcia’s return, it seemingly balked at the notion that the judge could go so far as to require the Government to “effectuate” his return, i.e., make it happen. The Court called on the judge to “clarify” that part of her order “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” 

The opinion also seemed to constrain how much information the district court could demand concerning efforts to bring Abrego Garcia back. It stated that the Government should be prepared to “share what it can” concerning steps to obtain his return.

The case now comes down to the sole question of whether the courts can make the Government return him if it persists in resisting. Specifically, what happens if it continues to insist, however implausibly, that it can’t force the Salvadoran government to give him back or that his return is somehow precluded by privileged foreign policy considerations that it can’t “share”?  On its face, the Court’s opinion seems to leave the door open to these assertions.

It will be a sad day if the Supreme Court ultimately accedes to this obvious subterfuge and condones the gross miscarriage of justice that defines this case.

From the outset, it featured patently illegal, bad faith conduct by Trump Administration officials. Abrego Garcia was one of over 200 alleged “terrorist” gang members surreptitiously seized without warrant, removed from the United States, and transported to a notorious prison in El Salvador with no due process. This was supposedly based on the Alien Enemies Act, a law that appears inapplicable by its plain terms. It is also far from clear that some deportees, including Abrego Garcia, were in fact gang members.^[2]From the sketchy information available, there appears to be little if any credible evidence of gang membership regarding Abrego Garcia. And, notably, he is alleged to be a member of MS-13, not the … Continue reading

Undoubtedly, the deportations were conducted hurriedly and secretively at least in part to avoid prior judicial review. Even after the fact, government officials have impeded judicial review at every turn. They defied one federal judge who ordered the deportees’ return while some flights were still in the air and later stonewalled the judge to the point that he was considering holding them in contempt.^[3]The Supreme Court ended this case by ruling that the judge lacked jurisdiction.

Justice Department leaders spearheaded a similar effort against the district judge in the Abrego Garcia case, going so far as to fire  one of their own attorneys for being too candid with the judge and not sufficiently vigorous in stonewalling her. (Shamefully, they appear not only indifferent to their own ethical obligations as officers of the court but determined to force subordinate attorneys to compromise their ethical obligations as well.)   

The Government’s assertion that it can’t return Abrego Garcia to the United States is utterly disingenuous if not an outright lie. El Salvador is essentially a custodial agent for the United States under an agreement in which the United States pays the Salvadoran government $6 million to hold the deportees “for one (1) year, pending the United States’ decision on [their] long term disposition.” (Emphasis supplied)^[4]See the trial judge’s opinion at page 6.

There is no reason to believe the Salvadorans would (or could, under the agreement) refuse a request to return Abrego Garcia to U.S. custody for transport back to the United States. Moreover, he is not alleged to have committed any crime in El Salvador so the Salvadorans have no reason of their own to detain him. Even Trump said that he could get Abrego Garcia back, and would do so if the Supreme Court told him to, before he was apparently advised to walk back that statement.

All three levels of the federal judiciary have ruled unanimously that Abrego Garcia’s deportation was unlawful and that he should be returned to the United States. One might think the Trump Administration would get the message and finally do the right thing. (The Supreme Court was surely hoping they would too.) Instead, clearly emboldened by the wiggle room in the Court’s opinion, it has become even more recalcitrant.

The Justice Department’s latest filing takes the absurd position that its obligation to “facilitate” Abrego Garcia’s return means nothing more than to remove any “domestic barriers” to his return. Under this ridiculous interpretation, the Trump Administration need not even ask the Salvadorans to turn him over to them.

Perhaps this latest act of flouting the law and disrespecting the judiciary—now including the Supreme Court by grossly distorting its opinion—will be the final straw. It’s hard to imagine why or even how the Supreme Court would still give any credence to the Trump Administration’s transparently false assertions. Indeed, considering its conduct in this and other cases, it’s hard to imagine a president or a Justice Department less entitled to the presumption of regularity and good faith usually accorded to the executive branch. 

If the Trump Administration persists and forces the Supreme Court to take another shot at the case, the Court should definitively put an end to this lawless, unconscionable farce.

 

On April 2, in his latest and potentially most consequential act of hubris, Donald Trump announced a blizzard of so-called “Liberation Day” tariffs on most countries—and then some. This triggered financial chaos in the United States and throughout the world. The U.S. stock market fell into “correction” territory and there were widespread expressions of concern domestically and internationally.

Trump’s tariffs have been panned by economists and others across the ideological spectrum.^[1]See here for a summary of criticisms from the right. Their stated goals are widely viewed as implausible and internally inconsistent. The supporting facts are dubious and rife with errors. Tariff targets include barren islands populated mainly by penguins. There are contradictions over whether the tariffs are firm or simply a negotiating tactic. Even apart from their negative economic impacts, the tariffs are yet another blow to our standing in the world. Whatever may be said in support of the tariffs, the issues and potential effects are surely much too complex to be left to the whim of one individual.

The tariffs and their rollout have all the hallmarks of a typical Trump flight of fancy that his bumbling, unquestioning staff attempted to execute as best they could understand them and most congressional Republicans were afraid to criticize. All in all, it would have been more fitting to announce the tariffs on April 1.

How is Trump, or any other president, able to take such sweeping, unilateral action with such profound impact on foreign commerce and the domestic economy? There’s nothing in the Constitution granting the executive branch this authority. On the contrary, the Commerce Clause (Art. I, section 8) explicitly grants Congress, not the president, the power to “collect Taxes, Duties, Imposts and Excises (Clause 1) and to “regulate Commerce with Foreign Nations” (Clause 3).

This is yet another striking example of how Congress has ceded its constitutional authority to the executive branch with few constraints on its exercise. Congress enacted statutes over the years delegating to the president authority to impose tariffs under various circumstances. The circumstances are usually described in general terms, often referencing loosely defined emergency conditions. The courts have consistently upheld the delegations.^[2]For detailed background, see here and here.

It’s possible that Trump’s assertion of a qualifying “emergency” to support his massive tariffs here may be too far-fetched for the courts to accept.^[3]See here and here. In any event, there is a more fundamental point beyond the issues related to these tariffs.

Congress may get away with abdicating its constitutional authority over tariffs and so many other subjects to presidents who act with at least a modicum of responsibly and good faith. Clearly, that’s is not the case with Trump. His only motivation is self-gratification, he operates with no regard for laws or democratic norms, and many of his initiatives are hoaxes.^[4]For example, his “Department of Government Efficiency,” fronted by Elon Musk, is not a serious effort to reduce fraud and waste by any objective definition or make a significant dent in federal … Continue reading

Trump’s many abuses highlight the urgent need for Congress to reclaim its constitutional role and responsibilities. Of course, this isn’t likely to happen with the current majorities composed largely of Trump sycophants. Hopefully, a future Congress will awaken from hibernation and find some remnants of democracy left when it emerges.

In the not-too-distant past, the federal government consisted of three reasonably functional branches. Each conducted its business in accordance with established norms and was composed of individuals who, for the most part, respected the rule of law and took seriously their oath of office. We seem to have reached the point, at least for now, when only one branch still functions as intended.

The legislative branch is in near-total meltdown. Congress, supposedly the primary source of federal policymaking, has abdicated most of its legislative authority to the executive branch and is barely able to accomplish its most basic task of appropriating funds to keep the government open. It has all but abandoned oversight other than political grandstanding. Both the House and Senate have devolved into hyper-partisan, polarized bodies whose members prioritize political survival over public service.

The executive branch is careening off the rails under President Trump, who clearly has no respect for democratic norms or the rule of law. Indeed, he delights in flaunting his contempt for our democratic institutions. He stocked his second term administration with yes-people whose only allegiance is to him. In just a few months, Trump and his surrogates (most notably Elon Musk) and subordinates have taken a wrecking ball to the federal government. Their actions create widespread chaos within and outside of government. Many raise serious legal issues.

Trump has no guardrails within the executive branch. It’s obvious that Congress won’t check his power. The Republican majorities in both houses of Congress apparently view their principal role as serving Trump rather than operating as an independent, co-equal branch of government. Democrats are powerless in Congress and too consumed by internal conflict to even produce coherent opposition messaging.

This leaves the judicial branch as the only serious constraint on Trump’s excesses. How effectively the courts counter him when he oversteps his authority will be a key test for our democracy.

Unsurprisingly, Trump’s blitzkrieg of legally controversial actions has already generated well over 100 lawsuits and counting.^[1]See here, here, and here. While most cases are in their early stages, there’s no indication so far that the courts are reluctant to rule against Trump. Indeed, the initial results provide two truly remarkable takeaways: Trump is on the losing end of over 80 percent of the preliminary rulings, and the adverse rulings are coming in almost equal proportion from judges across the ideological spectrum—84% liberal, 86% centrist, and 82% conservative. 

Still, many on the left fear–and many on the MAGA right hope–that once cases reach the Supreme Court, its 6-3 majority of conservative Republican appointees will fall into line behind Trump. The Trump Administration apparently shares this hope since it has staked out many very aggressive legal positions.

There is no objective reason to think that Supreme Court justices are biased toward Trump or that they would be susceptible to the intimidation and extortion he employs so successfully in so many contexts. The conservative majority is ideologically disposed toward a broad view of presidential authority.^[2]This probably explains their highly questionable decision last year on presidential immunity from criminal prosecution. They may therefore be receptive to several cases challenging statutory restraints on the president’s authority to remove certain executive branch officials based on the so-called “unitary executive theory.” Trump’s challenges to the controversial practice of nationwide injunctions may also resonate with the Court.

Apart from these possibilities, however, it’s doubtful that Trump will fare better at the Supreme Court than he has at lower levels. The most obvious reason is that many of his challenged actions are clearly illegal. His executive order attempting to redefine birthright citizenship is patently unconstitutional. It’s hard to imagine any self-respecting textualist/originalist justice upholding it. Indeed, there’s no good reason for the Court to take this case for review on the merits.^[3]Since the lower courts have uniformly ruled against Trump, there is no conflict to resolve. One possible complicating factor is that the Trump Administration is attempting to use this case as a … Continue reading Trump’s invocation of the Alien Enemies Act to deport alleged members of the Venezuelan gang Tren de Aragua with no due process looks like another loser for him if it reaches the Supreme Court on the merits. The Act seems inapplicable on its face.     

If the courts function as they should, how will Trump respond?

Trump and his minions are in full demagogue mode in the face of preliminary adverse court decisions. Trump ranted that the judge who initially ruled against him in the Tren de Aragua case was a “Radical Left Lunatic” who, along with other judges ruling against him, should be impeached.^[4]This drew a rebuke from Chief Justice Roberts. Musk made political donations to House members who echoed this nonsense and introduced impeachment resolutions. Attorney General Bondi accused the district judge of “support[ing] Tren de Aragua terrorists over the safety of Americans.”

While it’s easy to grow numb to Trump’s constant outrages, it’s still shocking that a president of the United States and an attorney general could engage in such absurd and disgusting behavior. It’s also distressing, if not surprising, that no prominent congressional Republican had the courage or integrity to condemn the ridiculous impeachment calls. Worse yet, House Speaker Johnson made veiled threats of his own against the judges.   

In addition to the extreme rhetoric, the Trump Administration is clearly playing fast and loose with the courts by stonewalling them and otherwise trying to keep them at bay. They may have violated court orders in the process. So far, however, they have stopped short of avowed defiance. Trump himself insists that he will not defy the courts.

It remains to be seen whether this changes when final judicial decisions go against Trump, as seems inevitable. However, openly defying the courts may be a bridge too far even for Trump. Trump is a con man and a bully; he operates by bluffs and intimidation, staking out extreme positions and pushing them as far as he can. But like any bully, he backs off in the face of stiff opposition.

There are reasons to believe he would encounter such resistance here. It has been accepted for centuries that, as Chief Justice John Marshall famously observed in Marbury v. Madison: “It is emphatically the province and duty of the Judicial Department to say what the law is.” Even prominent voices on the right reject the notion that Trump could disobey the courts.^[5]See here, here, and here. There would likely be a broad, bipartisan condemnation of defiance of the courts from academics, pundits, and most others outside MAGA world.

Furthermore, public opinion across party lines strongly opposes defiance of the courts. Overall, 84 percent of respondents (including 79 percent of Republicans) say Trump should abide by judicial decisions. Notably, most Americans (57 percent) already think Trump is exceeding his authority. Refusal to comply with final judicial decisions might even be the last straw for some otherwise spineless Republican politicians.

For now, all we can do is rally around the judiciary and hope that the rule of law prevails. The courts have come under cynical, spurious attack recently as both the left and the right sought to politicize them and undermine their credibility.^[6]See, e.g., here, here, and here. Now is the time to rise above partisanship to accord the federal judiciary the respect it deserves and that it will surely need in the months and years to come.

The chaotic start to the second Trump Administration includes a fiasco reminiscent of the infamous Watergate era “Saturday Night Massacre.” In a February 10 memo, Acting Deputy Attorney General Emil Bove ordered Danielle Sassoon, Acting U.S. Attorney for the Southern District of New York, to file a motion to dismiss “without prejudice” pending criminal corruption charges against New York Mayor Eric Adams. Sassoon declined, as did many other lawyers in the U.S. Attorney’s office and in Main Justice in Washington, leading to a series of resignations.

Bove’s memo stated that he was acting “without assessing the strength of the evidence or the legal theories on which the case is based.” He also stated that his directive “in no way” called into question the integrity and efforts of the line prosecutors or Sassoon’s leadership. He cited “two independent reasons” for dismissal: (1) the actions of the former U.S. Attorney threatened the integrity of the prosecution and improperly interfered with Adams’ reelection campaign; and (2) the prosecution unduly restricted Adams’ ability to fight crime and particularly to support federal efforts to combat illegal immigration.

Sassoon responded in an 8-page February 13 letter addressed to Attorney General Pamela Bondi that provided a detailed rebuttal to Bove’s directive and requested a meeting with Bondi to discuss the matter. She concluded by offering to resign if Bondi was unwilling to meet or reconsider Bove’s directive.

On the same day, Bove responded to Sassoon with his own 8-page letter rebutting hers. Bove’s letter accepted Sassoon’s resignation, placed two assistant U.S. attorneys who supported her on administrative leave, and stated that all three would be investigated.       

The two assistant U.S. attorneys from New York resigned along with Sassoon. One of them, Hagan Scotten, wrote his own scathing letter to Bove.^[1]He concluded with this widely-quoted zinger: “I expect you will eventually find someone who is enough of a fool, or enough of a coward to file your motion. But it was never going to be me.” All … Continue reading Bove then turned to the Public Integrity Section in Main Justice in search of someone willing to sign the dismissal motion. Five lawyers in that office, including its two leaders, refused and resigned.

Reportedly, Bove next called the remaining members of the Public Integrity Section together on Friday morning and gave them an hour to come up with two attorneys willing to sign the motion. One eventually came forward—apparently to protect the others–and he, along with a lawyer from the Criminal Division and Bove himself, signed the motion. Notably, Bove was the only lawyer who appeared on behalf of the United States at an initial hearing on the motion.^[2]More detailed background on all this can be found here, here, and here.

The actions of the Justice Department have been widely condemned,^[3]Ironically, the episode has also severely damaged its supposed beneficiary, Adams. with some of the harshest criticism coming from rock-solid conservative sources.^[4]See here, here, and here. The criticism is justified. Bove’s stated reasons for the dismissal are at best dubious and at times implausible and contradictory.

His first asserted rationale—misconduct by the prior U.S. Attorney that tainted the prosecution—is thoroughly contradicted by the facts detailed in Sassoon’s February 10 letter. And if this was an independent reason to end the prosecution why not dismiss it outright?

Bove’s second rationale—freeing Adams to concentrate on fighting crime—is also suspect on several grounds. Sassoon asserts that it constitutes, in effect, a quid pro quo to obtain Adams’ support for federal immigration enforcement efforts. Bove and Adams deny this, but Adams’ subsequent actions are consistent with her assertion. The proposed dismissal without prejudice, thereby retaining the threat of reinstatement, further supports her assertion. Another problem with this rationale is that its logic potentially extends to and undermines prosecutions of incumbent public officials in general. Obviously, a federal criminal prosecution would be a major distraction for any such official and seriously impact their performance.      

Other aspects of Bove’s conduct seem contrived and inconsistent. He may have coached Adams’ lawyers into embracing his rationales. The Adams lawyers said in a letter to the judge assigned to the case, Dale Ho, that Bove “invited us to a meeting at which he asked us to address how the case might be affecting Mayor Adams’s ability to do his job and whether there was evidence of politicization.”

Moreover, Bove’s February 13 letter to Sassoon seems to contradict his earlier statements that the dismissal was not based on the legal merits of the case or the conduct of prosecutors other than the former U.S. Attorney. In it he asserted: “The case turns on factual and legal theories that are, at best, extremely aggressive.” He also alluded for the first time to concerns over the conduct of Sassoon and the line prosecutors.  But if these were the real concerns, he surely would have invoked them initially.

Given the questionable stated grounds for dismissal and related inconsistencies, could there be another explanation for what happened here? At the risk of appearing cynical, my guess—and, of course, it’s purely a guess—is that Trump simply told Bove, directly or through an intermediary, to drop the prosecution and left it to him to make up a legal justification for doing so.

Trump denies instigating the dismissal. However, it’s hard to believe Justice officials would initiate it without his involvement, especially if one accepts their claim to have acted without regard to the merits of the case. Clearly, Adams had been currying favor with Trump for some time. Trump rewards those who kiss his ring and feed his massive ego just as he punishes his detractors. Indeed, Trump had publicly suggested that Adams was being treated unfairly and mused about pardoning him. It also figures that Trump would want the option of reviving the charges if Adams strayed from his good side.

Judge Ho declined to rubber stamp the dismissal motion and is now conducting an inquiry into whether it is contrary to the public interest.^[5]One specific point Judge Ho might rule on is the “without prejudice” aspect. He may be able to shed light on how this came about, perhaps by questioning Bove under oath concerning its genesis. Ultimately, however, the Adams prosecution will almost surely be abandoned. As a legal and as a practical matter, Judge Ho can’t force the Justice Department to prosecute the case.

Whatever its outcome, this episode raises a number of broader concerns. 

How politicized will the Trump Justice Department become? Trump and his allies railed against alleged political manipulation of the legal system by the Biden Justice Department. This case may signal that they are prepared to take such abusive practices to new levels, as Trump so often does.

Where was Attorney General Bondi? While Bove was the front man, creating havoc within the Justice Department, Bondi’s role is unclear. She kept her fingerprints off the documents and declined to meet with Sassoon or personally respond to her letter. Bondi appeared to be one of Trump’s more palatable cabinet choices, but this episode calls into question her leadership and integrity.

What does it say to current and prospective Justice Department lawyers? The disrespectful, ham-handed treatment accorded Sassoon and the others suggests that Justice leadership won’t hesitate to jettison high-quality lawyers who don’t reflexively accept its political objectives.^[6]Bove doubled down on this following the initial hearing on the dismissal motion, virtually inviting more resignations. He said that Justice attorneys who are “with me” will “do great things to … Continue reading If this is the message, expect more principled, highly competent attorneys to head for the exits. Other such attorneys considering employment at Justice will probably think twice as well. The Department will sorely need attorneys of their caliber to defend Trump’s many legally fraught actions.^[7]Contrary to most of the government, Justice is staffing up now for this purpose.

What does it signal to the courts about the Department’s credibility and bona fides? The willingness of the judiciary to assume good faith on the part of the executive branch and accord some degree of deference to its legal positions can be an important factor in litigating close cases. The questionable if not disingenuous conduct of Justice leadership here threatens to squander the Department’s credibility with the courts—something that may come back to bite them as the host of legal challenges to Trump’s actions move forward.

Where is the Congress? The silence on the part of Republicans in Congress is deafening. Many of them joined Trump in denouncing alleged abuses of the Justice Department under the prior administration, but they have nothing to say here. In this instance and others during just the first month of the Trump Administration, Republican majorities in Congress seem wholly disinclined to exercise their oversight responsibilities as a supposedly co-equal branch of government.

Now long retired, I spent my career in jobs focused on reducing waste and improving the performance of the federal government. I worked for many years at a nonpartisan agency dedicated to these goals (GAO) and continued with the same issues as a staffer on several congressional committees under both Republican and Democratic chairs.

I’m sickened by what’s being done these days in the name of government “reform.”

President Trump has apparently delegated virtually unbridled authority to Elon Musk, who seems clueless about how the federal government works and uninterested in learning but who is nonetheless eager to toy with it. Among other things, Musk is wreaking havoc on the federal workforce. His DOGE operation orchestrates massive firings in an arbitrary, ready-fire-aim way that lacks any strategic framework. (We are starting to see cleanup efforts to undo some of the mess.)

The vast majority of employees impacted by these firings are ordinary Americans, including many veterans, who perform their duties conscientiously.^[1]For example, 80 percent of federal employees work outside of the Washington metropolitan area and 30 percent are veterans. They do not make policy. They are not part of some “deep state” movement. They are not hostile to the public; on the contrary, many perform essential public services. They now find themselves out of work not because of any shortcomings on their part but because Musk et al. are trying to score political points. 

In addition to its unfairness and the human toll it exacts, Musk’s meat ax approach is wholly disingenuous as a “reform” project. Federal “bureaucrats” are convenient scapegoats for the many shortcomings of the federal government, but they exercise no inherent authority. They implement programs and activities enacted by Congress under the supervision and control of the political appointees who head their agencies. They often operate with antiquated management systems and processes that their political masters show no interest in updating. 

Musk’s blanket approach to downsizing fails to differentiate based on the importance of the work employees perform or the quality of their performance. His so-called  “fork in the road” initiative offered millions of federal employees eight months pay to do nothing if they agreed to deferred retirement. He patronizingly described it as a chance to “take the vacation you always wanted, or just watch movies and chill, while receiving your full government pay and benefits.” Putting aside the many legal and practical issues the offer raised, imagine that most employees had accepted it. The result would have been government paralysis resulting in severe harm to the public in many areas.

His subsequent blanket, indiscriminate dismissal of probationary employees was more of the same. He targeted them not based on the importance or quality of their work but because they were easy to fire.

Downsizing federal employees per se without regard to what they do or how they do it is nonsensical as a government reform initiative. The federal workforce is about the same size as it was 50 years ago and has actually decreased as a percentage of the overall American workforce. If the objective of reform is to reduce government “bloat” and “waste,” the focus should be on first identifying those programs and activities that don’t serve important federal objectives and only then reducing or eliminating their funding and staff. But this is hard work that requires much analysis and means taking on powerful political constituencies. It’s far easier just to attack federal employees as a whole, who are less politically connected and more vulnerable.

If Musk really wants to highlight a group of underperforming federal workers, he should look to Capitol Hill. Congress is fundamentally dysfunctional. Its members have abdicated most of their legislative authority to the executive branch. They struggle to perform their most basic constitutional responsibility of appropriating funds to keep the government running. They distain meaningful oversight as a co-equal branch of government. Notably, the current congressional majorities turn a blind eye to the flood of dubious actions taken in just the first month of this Trump Administration, including Musk’s.

On top of this, most of the bloat and waste that plagues the federal government can be traced back to Congress. After all, Congress rather than bureaucrats created the agencies, programs, and activities that make up today’s massive, unwieldy, and excessive federal government.  Congress is also the most formidable barrier to reform. It has largely ignored or actively resisted a wide range of reform recommendations submitted to it (often repeatedly) by GAO, agency inspectors general, and others.  

Musk’s attacks on the federal workforce are all the more disappointing because they distract from so many real reform opportunities. Musk and DOGE benefit from a level of visibility and cachet with the president unique in the history of government reform. They are ideally positioned to be a catalyst to force action on a host of serious reform recommendations that would save billions of taxpayer dollars and enhance the efficiency and effectiveness of the federal government. These recommendations have languished for years due to lack of interest or political will to act on them by decision-makers in the executive branch and Congress. Musk and his band of tech bros could also be effective in addressing IT issues that lie at the heart of many federal performance problems—a task that plays to their strengths.

To borrow his phrase, Musk and DOGE face their own “fork in the road.” They can continue their mindless attacks on federal employees, along with their grandstanding on other fronts–e.g., playing the familiar game of cherry picking isolated examples of silly federal expenditures; claiming to “uncover” problems already documented by GAO and IGs; portraying computer programming glitches as evidence of fraud. Or they can take up the large body of existing work that provides a roadmap to needed reforms, add contributions based on their own expertise, and use their immense influence to actually achieve great results for the American people.            

                

Among the flurry (blizzard) of executive orders President Trump issued on his first day in office was one purporting to deny U.S. citizenship to children of unauthorized immigrants born in the United States–and even to some children whose mothers were in the country legally. The executive order immediately triggered lawsuits challenging its constitutionality. The ink was barely dry when Federal District Judge John Coughenour (a Reagan appointee) enjoined its enforcement, finding the order to be “blatantly unconstitutional” and deriding attempts to defend it as mind-boggling.

Trump is unlikely to fare better as the litigation proceeds. His order clearly contradicts the Fourteenth Amendment. While expressing themselves less bluntly than Judge Coughenour, even many conservative legal pundits are highly skeptical of the order’s constitutionality.

Section 1 of the Fourteenth Amendment provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”^[1]For good measure, a federal statute, 8 U.S.C. 1401, says the same thing.

This unambiguously grants U.S. citizenship to all individuals born in the United States, regardless of their parents’ immigration status, with a few minor exceptions not relevant here involving persons who are immune from the laws of the United States (e.g., foreign diplomats). The background and history of the Fourteenth Amendment reinforce the plain meaning of its language,^[2]See here. as do two Supreme Court decisions.^[3] See United States v. Wong Kim Ark, 169 U.S. 649 (1898), and Pyler v. Doe, 475 U.S. 202 (1982).

While the executive order is likely to remain a dead letter, the controversy over it offers two lessons that may have more lasting significance than the order itself.

Originalism isn’t just for conservatives

This case provides a good example of contrasting approaches to constitutional interpretation—originalism versus living constitutionalism—but with a twist.^[4]See here for background on these contrasting methodologies. The originalist approach, usually favored by conservatives and distained by liberals, adheres to the original public meaning of constitutional text. Therefore, this is an easy case for any self-respecting originalist. Judge Coughenour described it as the easiest case he could recall from his four decades on the bench.

The only possible defense of the executive order is, in effect, to invoke the living constitutionalism ordinarily embraced by liberals and ridiculed by conservatives. The argument here is that the original meaning of birthright citizenship must “evolve” to better address the current landscape of massive illegal immigration and arguable abuses of citizenship acquisition such as “birth tourism.”

After all, the Fourteenth Amendment’s birthright citizenship provision was designed primarily to overrule the reviled Dred Scott decision and affirm the citizenship of African Americans living in the United States; illegal immigration was a non-issue at that time. From this perspective, its sweeping grant of birthright citizenship could be considered anachronistic and unsuitable in today’s environment. In support of this, advocates for the executive order argue that the phrase “subject to the jurisdiction” of the United States can be read to limit birthright citizenship to persons who owe exclusive “allegiance” to the United States and thus exclude non-citizens living here legally or illegally.

This effort to reimagine the birthright citizenship provision rather than apply it as written has been roundly condemned and is unlikely to gain any traction with the courts.^[5]See here for more on these arguments together with a rebuttal by a leading conservative legal scholar. Originalism not only produces a liberal result in this case but provides a far superior legal rationale.

Even Trump needs to know when to fold

Many legal cases turn on how much credence and judicial deference to afford executive branch positions; thus, presidents and their lawyers can ill afford to squander whatever cachet they have with the courts. Administrations of both parties regularly test the limits of their authority and sometimes stake out far-fetched legal positions.^[6]See, for example, President Biden’s risible declaration on his way out the door that the Equal Rights Amendment has been duly ratified and is now part of the Constitution. But Trump takes this practice to a new level. Many of his actions, including several other recent executive orders, flout the law.

Sadly, Trump’s standard approach of bullying, intimidation, and personal attacks on those who resist him has served him well in the political arena. However, as the initial round in this controversy shows, these tactics won’t work with the federal judiciary. It’s hard to imagine any court, much less the Supreme Court, ruling for him in this case.

The worst approach Trump could take is to push the case through the judicial system and force his lawyers to defend the indefensible by pressing outlandish arguments. Doing so will surely end in defeat, and it could well cause them reputational damage carrying over to more serious cases. The most sensible thing Trump could do is settle for whatever political advantage he got from staking out his position on birthright citizenship, drop the legal defense of the order, and move on. Of course, Trump being Trump, he probably won’t.

 

 

 

 

The federal government clearly needs reform. Duplication and overlap abound. Many programs and activities are at high risk for fraud, waste, abuse, and mismanagement. The federal government faces a looming fiscal crisis as spending spins out of control. Annual interest payments on the federal debt exceed the entire defense budget. Entitlement programs such as Social Security and Medicare are financially unsustainable and on the road to insolvency. It’s no wonder most Americans lack confidence in the federal government.

In the face of this, President-elect Trump announced to great fanfare a reform initiative called the “Department of Government Efficiency” (DOGE), to be led by Elon Musk and Vivek Ramaswamy. Despite its name, DOGE will be a non-government entity although it will work closely with the executive branch and Congress.^[1]Several past government reform initiatives used a similar model. The closest analog is the Grace Commission, established by President Reagan in the early 1980s. DOGE is to complete its work by July 4, 2026.

Will DOGE be a serious, substantive undertaking?

At best, DOGE could be the kind of high-profile, high-powered change agent needed to train the spotlight on the government’s many shortcomings and deliver major improvements and taxpayer savings. At worst, it might be nothing more than a political exercise and a vanity project for its co-leaders that accomplishes little and even distracts from more earnest reform efforts.

Time will tell which way DOGE goes, but there are early warning signs. The rhetoric coming from Trump, Musk, and Ramaswamy—e.g., “drain the swamp,”“second Manhattan Project,” use a “chainsaw not a chisel”–makes DOGE sound more like a scattershot attack on the federal government than a thoughtful undertaking to fix it.^[2]See, e.g., here and here. Their pervasive emphasis on “cutting the government down to size” ignores what should be a concomitant—in fact, more important—goal for any comprehensive reform initiative: enhancing the performance and effectiveness of core federal government functions.

Musk and Ramaswamy make extravagant promises that call into question their understanding of the work before them.  In particular, Musk’s suggestion that DOGE could cut “at least $2 trillion” from the annual federal budget has been met with  great skepticism. ^[3]See here for a detailed reality check of the early DOGE agenda.

The selection of Marjorie Taylor Greene, one of the most frivolous and least respected members of the House of Representatives, to chair a subcommittee working with DOGE is another red flag.

A reform effort as ambitious as DOGE claims to be is sure to encounter resistance from many corners. It will need all the credibility, good will, and support it can muster from the public, the media, and politicians of both parties. If its leaders are genuinely interested in achieving serious results, they would be wise to project more seriousness.

DOGE prioritizes dubious projects

Some of the specific priorities Musk and Ramaswamy pushed in a recent Wall Street Journal op-ed raise additional warning signs. For example, they suggest that a “plethora” of current federal regulations are illegal and pledge to develop a list of “tens of thousands” of them for Trump to “nullify.” They would also eliminate federal employees in numbers “at least proportionate to the number of regulations nullified.”

It’s absurd to think that thousands of legally suspect regulations have gone unchallenged and are just waiting for DOGE to discover them. In any event, Trump can’t simply nullify regulations. Repealing them is a complex, legally fraught process requiring the experience and expertise of the employees they plan to eliminate. One recent Supreme Court decision Musk and Ramaswamy cite as easing this task will actually make it harder.

Another problematic example is their pledge to target $500 billion in annual federal spending that is “unauthorized by Congress.” Apparently, they refer to agencies and programs operating under expired statutory authorizations. Contrary to their implication, there’s nothing illegal about this. Lack of authorizing legislation is significant only under internal congressional rules, which Congress regularly overrides as it continues to fund these agencies and programs.

There are much better projects for DOGE to prioritize

DOGE could get off to a stronger start by prioritizing projects that are more likely to attract broad support and achieve real results. Nonpartisan federal watchdogs such as the Government Accountability Office (GAO) and agency inspectors general (IGs) have reported (repeatedly) on a host of serious problems facing the federal government along with their root causes. Much of what’s needed to address them is already known.

One major reason these problems persist is that executive branch and congressional decision-makers lack the interest and sustained commitment to implement solutions. A high-visibility initiative like DOGE could serve as the catalyst needed to pressure decision-makers to act. It could use the extensive body of work already done by GAO and the IGs as a roadmap for this purpose. Some examples:

• • Hundreds of billions of taxpayer dollars are lost annually to fraud and other improper payments. DOGE could start by targeting six federal programs GAO identified as accounting for $200 billion of the estimated $236 billion of improper payments in fiscal year 2023.
  • The Defense Department is a poster child for waste, inefficiency, and mismanagement. It can’t pass a basic audit. It owns five areas on GAO’s high risk list that have persisted for decades and contributes to several more. Its ossified business operations, which seem impervious to reform, present many targets well suited to DOGE’s aggressive entrepreneurial approach.
  • GAO reports that the nation’s air traffic control system “urgently” needs modernization. Many of its data systems are seriously outdated and unsustainable. Fixing these problems would enhance the safety and efficiency of air travel.
  • Federal oversight of the U.S. food supply is badly fragmented. Fifteen different agencies administer at least 30 different laws in this area. For example, cheese and meat pizzas are regulated by different departments. This problem has languished on GAO’s high risk list for 17 years. Streamlining and rationalizing this regulatory maze would save money and enhance food quality and safety.

There are many other well-documented, promising reform opportunities like these that offer substantial taxpayer savings and improvements in the delivery of essential government services that the public relies on.

Entitlement program reforms should be on the table

Any comprehensive reform initiative, especially one that promises to improve the government’s dire fiscal situation, should include massive entitlement programs like Social Security and Medicare. Both programs are fiscally unsustainable as now structured and will become insolvent in about a decade. While these programs are popular, the reform options—some mix of reduced benefits, tightened eligibility requirements, and/or higher taxes—are not. Consequently, neither political party shows interest in taking them on despite the inevitable need to face up to them at some point. Unfortunately, DOGE apparently plans to dodge them as well.   

Congress is a major obstacle to reform

Bureaucrats are convenient scapegoats for the government’s woes. In reality, however, Congress is both a primary source of many problems and often a roadblock to fixing them. Federal agencies and their employees exercise only the powers that Congress grants them. The thousands of federal programs now on the books are the work of Congress. A significant cause of the proliferation of federal regulations is Congress delegating vast discretionary authority to agencies with little accompanying guidance. As Congress has become increasingly dysfunctional in recent years, it has defaulted more and more of its legislative responsibilities to the executive branch.

DOGE will probably find Congress to be more of an adversary than an ally. Most members of Congress see little political payoff to pursuing government reforms. On the contrary, troubled programs and activities have constituencies with political influence on Capitol Hill that actively resist reforms. Lawmakers on authorizing and appropriating committees zealously guard their turf and protect the special interests that fund their elections. These headwinds to reform contribute mightily to the tenacity of problems like fragmented food inspection programs and hidebound Defense Department operations.

Congressional barriers to reform are a rare example of bipartisanship; members of both parties are equally protective of their constituencies and resistant to change. If DOGE is to achieve real reform, its leaders must find ways to overcome these forces.

Outlook

Comprehensive federal government reform is sorely needed. DOGE starts with the key potential advantages of a high profile, aggressive leaders (to say the least), and strong presidential support. Whether it can live up to its billing remains to be seen. As a good first step, its leaders should approach their work with more realistic, strategic thinking and less hubris. 

The 2024 presidential race, which one pundit dubbed the “Hemlock election,” is finally over and voters picked their poison. Trump won over 300 electoral votes, all swing states, and probably the national popular vote. He exceeded his 2020 performance almost everywhere and gained ground among most identity groups, making particularly significant inroads with black men and Latinos.^[1]While these results suggest a decisive win for Trump, the election was still quite close. A one percent shift in the vote nationwide would have produced very different results.

Given the close pre-election polling Trump’s win was less shocking than in 2016, but in one sense it should be a greater shock. Voters had a much clearer picture of Trump this year than in 2016; during his first term and thereafter he demonstrated in many ways and by any objective criteria his unfitness for office. Yet, he still won. How did it happen and what does it mean for the future?

Trump benefited greatly from a disillusioned, disgruntled electorate

According to many analysts, voter anxiety about the economy combined with general dissatisfaction over the condition of the nation and desire for change were the keys to Trump’s victory. The vast majority of voters surveyed in AP Vote Cast exit polling expressed concern over the cost of groceries, health care, housing, and gas. Two-thirds of respondents in CNN’s exit polls described the economy as being in bad shape. Nearly half said they were worse off than four years ago. They voted overwhelmingly for Trump. Economic concerns far outstripped any other issue for voters.

Such pocketbook concerns were coupled with widespread voter malaise over the state of our nation and its governance. According to polling:

• Two-thirds of Americans think the country is on the wrong track.
• Trust in the federal government stands at 22 percent. Most believe it unfairly benefits some people over others and doesn’t respond to the needs of ordinary citizens.
• A bare 15 percent of Americans believe elected officials care what they think.
• A record low 28 percent are satisfied with the way our democracy is working.
• Fifty-nine percent of exit poll respondents disapproved of the Biden presidency.

These voter sentiments presented an extremely challenging playing field for even the strongest incumbent party candidate, and Kamala Harris was far from that. By the same token, they gave a huge boost to even a deeply flawed opposition candidate like Trump.

The election was not a vote of confidence in Trump or mandate for MAGA

Trump has a substantial cult-like following of true believers who embrace his outrageousness as a giant middle finger to progressives and establishment “elites.” However, this hard-core base is estimated to be only about one-third of Republican voters and 15 percent of the electorate overall. Most of his voters were motivated by factors other than allegiance to Trump and opted for him as the perceived lesser of two evils. While Harris was a weak candidate, Trump was weaker. He was more unpopular than Harris (53% disapproval) and many of his voters harbored serious misgivings about him.

Don’t demonize Trump voters

Some of those incredulous over the election outcome condemn Trump voters as fascists, racists, misogynists, or fools and insist that the nation has lost its way. While saying this may feel good, it’s as wrong as it is unhelpful. According to a great many analysts,^[2]See, e.g., here, here, here, and here. what’s really at work here is the increasing class divide in the American electorate along education and income levels that is changing longstanding voting patterns. The groups on either side of this divide live disparate lives within America. Their differences include economic and social wellbeing, most importantly, but also where they live, what information sources they consume, and their cultural values.  

Unsurprisingly, the contrasting political perspectives of these two cohorts reflect their contrasting realities. For example, how’s the economy? Members of the more educated, higher income cohort–especially the elites who now dominate the Democratic Party–generally experience much better economic times than the less educated, lower income cohort. Is crime a major problem? The former cohort generally has less exposure to crime and its consequences than the latter. How good are public schools? They vary greatly by socioeconomic factors, affording children of the former cohort much better access to quality education.  

There is nothing deplorable or ignorant about so-called ordinary Americans in the less educated, less financially secure cohort embracing Trump’s antiestablishment message and worrying less over any threat to democracy he may pose. In fact, they have lost ground at the hands of establishment elites in both parties who have long pursued economic and other policies that worked to their disadvantage. In fact, our democracy, dominated by these establishment elites for decades, has not worked well for them.^[3]See here for an illustration of these points.

Trump’s gains among most minority group voters further refute the notion that his supporters must be bigots. These voters share many of the same realities, concerns, and frustrations as white working-class voters as well as their more conservative cultural values. Their votes prioritize these factors over the identity politics practiced by Democrats.

The election results pose challenges for both parties

The increasing salience of class-based differences in voting has major consequences for both political parties. Indeed, the two parties have largely switched identities. Ruy Teixeira, a left-leaning expert on political demographics, observes:

“The Democratic Party may be the party of blue America, especially deep blue metro America, but its bid to be the party of the ordinary American, the common man and woman, is falling short.

“There is a simple—and painful—reason for this. The Democrats really are no longer the party of the common man and woman. The priorities and values that dominate the party today are instead those of educated, liberal America which only partially overlap—and sometimes not at all—with those of ordinary Americans.”

Teixeira points out that Democrats can’t continue to bleed their traditional base voters and expect to win national elections with mainly progressive elites. He suggests many ways they can  reconnect with “normie voters, particularly working-class voters of all races.” Other pundits likewise stress the need for Democrats to focus more on the concerns of everyday Americans and less on the so-called “luxury beliefs” pushed by the far left such as extreme trans ideology.

Trump and Republicans also face challenges. The Republican Party has been uprooted from its traditional foundations as well and transformed into a populist party subservient to Trump. While Trump expanded his populist base, he must now deliver. However, it’s questionable whether he will. His campaign was long on histrionics, bombast, falsehoods, and venom but offered little by way of substantive policies. Even if Trump comes up with a coherent policy agenda that speaks to the needs of his voters, he may lack the wherewithall to execute it. (See below)

Does Trump pose a serious threat to democracy?

Maybe. Trump gives every indication of wanting to govern as an autocrat but he may not be very good at it.

Our constitutional system has evolved in ways that concentrate in any president far more power over the lives of its citizens than the founders envisioned. However, Trump is the first president to persistently flout our democratic traditions. His words and past actions make clear that he has no respect for the rule of law or the norms of democracy. His early moves following the 2024 election suggest more of the same.

He could be even worse this time around. For one thing, he won’t have to face the voters again. For another, internal guardrails that provided some constraints on him during his first term will be missing this time. Trump’s many bizarre picks for positions in his administration confirm his intent to surround himself with yes-people whose main qualification is loyalty to him. He also threatens to convert many career executive branch positions into political slots in order to install more lackeys to do his bidding.

Additionally, Trump will have a more compliant Congress to start with. Republicans regained control of the Senate, probably with a sufficient majority of Trump loyalists to offset the few remaining GOP members who might have the courage and integrity to push back against him. (How the Senate responds regarding confirmation of his most outrageous nominees will provide an early test of their willingness to put institutional interests and the public interest above fealty to Trump.) Republicans also retained their House majority, completing the prized “trifecta.”

However, there are some contraindications. Trump lacks the personal traits to be an effective authoritarian. He’s intellectually lazy, unfocused, impulsive, erratic, and indifferent to any cause but himself. He is not bent on world conquest or other grand schemes; his only real agenda is self-gratification. Relying on sycophants selected for loyalty rather than merit to implement whatever plans Trump does choose to pursue presents its own challenges. Many of his key picks so far appear to lack the knowledge, experience, and gravitas to be very effective if they are confirmed. 

Trump’s control of Congress probably won’t last beyond his first two years. The party out of power almost always gains seats in midterm elections and the Senate math for 2026 favors Democrats. The Republicans’ House majority remains quite thin and will likewise be vulnerable. The losses could be severe if Trump’s initial years produce the donnybrook many expect.

The federal judiciary will stand as a key guardrail in Trump’s second term as it did during his first. A recent Supreme Court decision strengthens the role of the courts in checking executive branch actions based on questionable legal rationales. Those on the left should reconsider their unjustified attacks on the legitimacy of the Court. They will need it to be strong and credible if their dire predictions for Trump’s second term materialize.

Of course, there is ample cause for concern even if Trump falls short of being the all-powerful dictator his critics fear. The next four years are almost sure to be a rocky ride for the nation and much of the world. While his second term may not resemble a reprise of the Third Reich, it will likely be as chaotic as his first if not more so.

Trump’s second term will need aggressive but credible scrutiny

No matter how bad Trump’s second term turns out to be, the worst mistake his critics could make is to repeat the “resistance” approach they used during his first term. The media engaged in blatantly biased coverage and false narratives—most notably, spending years flogging baseless allegations of a Trump-Russian conspiracy—at great cost to its own credibility.  Democrats in Congress also overreached. For example, their first impeachment of Trump rested on dubious grounds and accomplished nothing. The second was stronger but came too late to succeed. By pursuing it, Democrats forfeited a more viable chance for bipartisan censure.    

This pattern continued after Trump left office. He appeared to be on the ropes following the 2022 midterm election debacle when he once again led Republicans to defeat with the highly flawed candidates he promoted. Democrats promptly breathed new life into him with their legally dubious and obviously politically motivated prosecution in New York.

Trump gives his critics plenty to work with. They would be most effective by playing it straight and relying on objective, fact-based opposition rather than stooping to his level.

The threats to our democracy go beyond Trump

The challenges to our democracy run deeper than Trump and will likely persist regardless of what happens in his second term. Both political parties are increasingly dominated by their extremes and disconnected from the American mainstream. Political polarization stifles constructive debate and compromise, breeding government dysfunction. Few members of Congress from either party seem willing to put the public interest ahead of partisanship. Neither party shows the slightest interest in addressing or even acknowledging the monumental fiscal crisis facing the nation.

As much as we complain about our politics and leaders, American citizens are ultimately responsible for the quality of our democracy. We get the elected officials and government we deserve. Improvement will only come if the American people demand it. How that might happen is a subject for a future post.

 

 

Critics displeased with the Supreme Court’s decisions claim that the Court is in “crisis” and propose various “reforms” to fix it. However, the real crisis the Court faces is not of its making but the work of the political branches, which have undermined it by turning the appointment process for Justices into a hyper-partisan farce. The remedy is not in the so-called reforms advocated by the Court’s detractors, most of which would exacerbate the damage already done to the Court. A better, much-needed reform is to reinstate the bipartisan principles that governed judicial appointments for decades.

The Supreme Court has been in the political crosshairs since its conservative wing became ascendant, leading to a rash of proposals to “reform” it. Early in his term, President Biden established a commission to study these proposals. His commission produced a lengthy report that analyzed them but offered no conclusions or recommendations.

Since then, controversy over the Court and pressure from its critics have intensified. Shortly before dropping his reelection bid, President Biden backed several proposals, including constitutional amendments to nullify the Court’s decision on presidential criminal immunity and to subject the Justices to term limits.

Senate Democrats, along with critics of the Court in academia and the media, have gone further. If Democrats win control of the presidency and both houses of Congress this year, the Supreme Court will remain a prime target. Senate Democratic Leader Chuck Schumer vowed that going after the Court will be “a very big priority” in the next Congress.

Reform proposals range from outrageous ideas that would threaten the Court’s independence and integrity to a couple that have at least superficial appeal. While ostensibly aimed at saving the Court from itself, all are advanced by its detractors on the left who ultimately seek to shift the Court’s ideological balance back to the liberal side that was dominant for so long.

The detractors insist that the Court faces “crises” in legitimacy, ethics, and public confidence. These are red herrings. Concerns over the Court’s “legitimacy” are based mainly on often overwrought disagreement with its decisions. A prominent law school dean describes the Justices as “political hacks.” Law professors claim to be unable to teach the Court’s decisions as valid law. Senator Schumer once threatened several Justices by name. The supposed ethics crisis is largely a media construct. The alleged crisis in public confidence is driven primarily by Democratic opinion.^[1]See here and here.

This post explores the main reform proposals offered so far. It concludes by offering an alternative reform to address the one genuine crisis the Court faces: the shameful efforts by both parties over recent decades to politicize it by destroying the bipartisanship that once characterized judicial appointments.      

Legislatively “overruling” Constitution-based Supreme Court decisions

The most outlandish reform proposal, embodied in a bill introduced by Senator Schumer with the support of a majority of Senate Democrats, would overrule by statute the Supreme Court’s decision that the Constitution grants presidents broad immunity from criminal prosecution. While this decision may well be wrong, the notion that Congress can exercise appellate jurisdiction over the Court is absurd. The bill is so obviously unconstitutional that if it was somehow enacted into law no court would uphold it. Even President Biden recognized that overturning the decision requires a constitutional amendment.  While this proposal may be nothing more than political grandstanding, it shows how far critics will go in attacking the Court.^[2]See here for more on this proposal.

Adding Justices to the Court (aka “court-packing”)

This proposal constitutes another outrageous attack on the Court’s independence and integrity. It would reduce the Court to a mere extension of the political branches.^[3]See here for background. Unlike the first proposal, however, it poses a very real threat since Congress actually has the power to enlarge the Court. 

Court-packing has a sordid history going back to the infamous FDR scheme of the 1930’s that was soundly rejected. While most Americans still oppose this awful idea, it’s gaining traction among Democrats.^[4]See here and here. One prominent Democratic senator, Ron Wyden, has already introduced a court-packing bill.  Vice President Harris ducked a question on whether she would support court-packing, but said there should be “some kind of reform” of the Court. 

Term limits for the Justices

Unlike court-packing, term limits enjoy broad public support although Democrats are more supportive than Republicans and independents. This proposal has some appeal as a conceptual matter. Life tenure for public officials is very rare, and in the United States almost unique to federal judges.^[5]Most state judges are subject either to term limits or a mandatory retirement age. On the other hand, the Nation has survived over 200 years of life-tenured federal judges without significant problems. And if life tenure is now problematic shouldn’t term limits be imposed on lower court federal judges as well as the Justices?

The real motivation here, however, is not concern over life tenure per se but the need to somehow address the partisan hash that the political branches have made of Supreme Court appointments. Term limits proponents seem to accept that the appointment and confirmation process has become irreversibly politicized and believe the solution is to give future presidents equal opportunity to make it even more so by tying appointments to presidential election cycles and results.

The leading proposal is for Justices to have 18-year terms staggered in a way that allows each president to appoint two Justices per presidential term. This would take years to become fully effective and might never achieve its goal. For example, there is no way to force the Senate to confirm nominations within the proposed cycle (or at all, for that matter). Term limit schemes pose many other implementation challenges as described in the Biden commission report.     

The most obvious challenge facing any legislative term limits proposal is its constitutionality. While Court critics maintain that Congress could enact some sort of de facto or functional term limits by legislation, the predominant view is that a constitutional amendment would be required.^[6]See here for background. Legislatively imposed term limits would be particularly constitutionally suspect if Congress attempted to apply them to the sitting Justices.       

A binding, enforceable Supreme Court ethics code

This proposal also has wide public support. After all, who would oppose the notion that the Justices should act ethically? However, the asserted rationale that the Court faces an “ethics crisis” is  hyperbole, and in any event, the few arguably valid concerns in this area have been addressed.

Allegations of ethics abuses center on just two of the nine Justices–unsurprisingly, the two most conservative, Alito and Thomas–and they have little substance. Apart from issues relating to financial disclosure reporting, the ethics “scandals” either fall into the nebulous and largely subjective area of appearances^[7]See here. or constitute outright media concoctions.^[8]See here and here.  

Regarding financial disclosure, the Justices are subject to the same reporting requirements under the Ethics in Government Act as lower court judges and most other federal officials. The Act carries civil and criminal penalties for willful failure to report or false reporting.^[9]See here for background. There is no evidence that any reporting omissions by the Justices were willful. In fact, some arguable omissions resulted from ambiguities in the reporting criteria that have since been clarified.

Regarding potential conflicts of interest, the Court responded to its critics by adopting an ethics code of its own in November 2023 notwithstanding the lack of evidence of abuses. The Court’s ethics code generally follows the ethics rules applicable to other federal judges.^[10]See here for an analysis of both. However, the critics complain that the new ethics code lacks enforcement mechanisms.

The key focus here is on recusal. Justices, like lower court judges, are required by law to recuse themselves from cases if certain specific conflicts exist or, more generally, whenever their “impartiality might reasonably be questioned.” However, recusal carries unique consequences for a Justice. While lower court judges who recuse can be replaced, there is no substituting for a recused Justice. Since recusal of a Justice leaves only eight votes to decide a case and can have a major impact on its outcome, the bar for recusal must be high. Unlike lower court judges, a Justice cannot simply err on the side of recusal. The Court’s ethics code recognizes this, stating that a Justice “is presumed impartial and has a duty to sit unless disqualified.”

Recusal decisions now rest at the discretion of each Justice, but the Court’s critics want some way to force recusal. This could create a form of reverse court-packing: instead of adding ideologically friendlier Justices, attempt to subtract those deemed hostile. However, any initiative to impose a recusal process on the Court would raise serious constitutional issues. Under separation of powers principles, it’s doubtful that Congress can dictate how the Court handles recusals any more than the Court can regulate internal congressional procedures.^[11]One modest step the Court itself could take for more transparency is to require Justices to provide explanations when they reject recusal motions, as they have sometimes voluntarily done.      

In contrast to the foregoing, there is one reform that could actually benefit the Court

The “reforms” discussed above, and similar ones advocated by the Court’s detractors,^[12]The Biden commission report describes several other ideas to restructure the Court or alter its processes. The Wyden court-packing bill includes several more as well. are solutions in search of a problem. None would clearly improve the Court and most would do it great harm. With the (frightening) exception of court-packing, they also are mainly dependent on constitutional amendment and thus highly unlikely to be implemented. 

There is, however, a constructive reform that would go a long way toward depoliticizing the Court: Restore the merit principles and 60-vote threshold for Senate confirmation that were for many years the norm for Supreme Court (and other judicial) appointments.

Until recent decades, both political parties accorded presidents considerable deference regarding their nominees to the Court as long as the nominee was well qualified substantively, ethically and temperamentally fit, and within the mainstream of legal thought. Additionally, the 60-vote threshold for confirmation ensured some bipartisan support. These principles usually (though not always)^[13]See Bork and Thomas. resulted in relatively noncontroversial confirmations of ideologically diverse nominees. For example, both Ruth Bader Ginsburg and Antonin Scalia were confirmed by overwhelming majorities.      

The political parties share equal blame for the erosion of these principles over the years to the point that Supreme Court appointments and confirmations have been reduced to a wholly partisan farce.^[14]See here, here, and here. Reinstating them should be embraced by anyone of any ideological or political persuasion who genuinely has the Court’s best interests at heart.

This reform is straightforward and could readily be achieved without legislation or constitutional amendment. All it needs is for our elected leaders to muster the courage and integrity to put the public interest over knee-jerk politics. Unfortunately, that may be too great an ask in these polarized, hyper-partisan times.

Many on the left brand the current Supreme Court an ideologically and even politically extreme “rogue” institution whose six-member conservative majority rides roughshod over the liberal minority and consistently produces decisions that are fundamentally at odds with the views of most Americans. All this is said to be reflected in the Court’s declining stature in the eyes of the public.

These characterizations don’t withstand objective analysis. In recent years, university researchers have selected “major” cases pending before the Court, as identified by media outlets and Court observers, and surveyed public opinion on the issues they present. Since the surveys are conducted before many cases are decided, the Court’s eventual decisions do not always track the issues polled.^[1]For example, the Court decides some cases on procedural grounds such as lack of standing without reaching the substantive issues, or it may recast the substantive issues in its decisions. But in most cases they do, and comparing the survey results with the Court’s decisions is quite revealing.

The results in past years^[2]See here and here. demonstrate that the Court is far from a conservative monolith and that more often than not its decisions align with majority public opinion. Indeed, the Court is more in tune with the public than its leftist critics. Also, the conservative justices vote in lock step less frequently than their liberal colleagues.  

This year’s survey results show the same things. The researchers surveyed public opinion on 16 selected major cases before the Supreme Court in its 2023-2024 term completed this June. In four of the cases, the Court’s ultimate decisions did not align with the issues polled.^[3]The Court did not reach the polled issue in three cases for procedural reasons. In the fourth case, Fischer v. United States, the issue polled—whether or not the events at the January 6 attack on … Continue reading That left twelve cases for comparison. The Court’s decisions were consistent with majority public opinion in eight of the twelve. Polling respondents who identified as Republican agreed with the Court 9-3; those who identified as Independent/Other agreed 8-4; and Democratic respondents split 6-6.   

Data for all 16 decisions selected for this term again refute the notion that the justices inevitably fall into one of two polarized camps. Six of the 16 cases were decided unanimously. Only half of the ten split decisions featured all the conservatives on one side and the liberals on the other.^[4]While the clean conservative-liberal split in half these non-unanimous cases may still seem high, the selected cases are by design particularly noteworthy and controversial. For all 62 cases decided … Continue reading The conservative justices differed among themselves in the other split cases. Liberal Justices Sotomayor and Kagan voted alike in all 16 cases; Justice Jackson differed from her liberal colleagues in only two cases. On the conservative side, only two justices, Roberts and Kavanaugh, voted together in all 16 cases.^[5]Statistics for the entire 2023-2024 term reenforce these voting patterns. Of the 62 cases in all, 25 resulted in unanimous decisions. The alignment of justices in the 37 non-unanimous decisions does … Continue reading

Given the foregoing statistics, why has public confidence in the Supreme Court declined? There probably are several reasons. For one thing, recent years have witnessed declining public confidence in almost all American institutions. The Court is not exempt from this; indeed the relentless (and unwarranted) attacks on its “legitimacy” and the integrity of individual justices surely have some impact. Also, a few recent very highly publicized decisions did go against the great weight of public opinion.^[6]One example from the cases selected this year is Trump v. United States, which held that presidents have broad immunity from criminal prosecution for their official acts. Another is the 2022 Dobbs … Continue reading But the main factor is the ever-increasing polarization of the public.   

The Court’s favorability ratings clearly reflect sharp partisan divides. According to the Pew Research Center, the Court’s overall rating is 47 to 51 percent unfavorable. However, 73 percent of Republican and Republican-leaning respondents rated the Court favorably while only 24 percent of Democratic and Democratic-leaning respondents did.  Gallup polling has similar findings with Republican respondents highly favorable (62%), Democrats highly unfavorable (17%), and independents in between (41%).

One of this year’s featured cases illustrates these divisions. In Trump v. Anderson, the Supreme Court unanimously overturned a state court decision finding Donald Trump ineligible to run for president by virtue of the Fourteenth Amendment’s ban on insurrectionists holding public office. Republicans overwhelmingly agreed with the Court (93 to 7%), Democrats overwhelmingly disagreed (84 to 16%), and independents agreed 54 to 46%.

Of course, the Supreme Court is not supposed to be a political body that decides cases based on public opinion. At the same time, there would be cause for concern if its decisions were persistently at odds with the views of most Americans. Fortunately, objective data demonstrate that this is not the case.

Notwithstanding the data, attacks on the Court are likely to continue based in part on the false narrative that it is hopelessly out of touch with the public. In assessing these attacks, it’s worth keeping in mind that the Court’s public standing still far exceeds that of its critics in the media (14 to 18% favorable) and Congress (8% favorable).