Trump Dogs Supreme Court as Washington Looks Ahead to Biden

Supreme Court Issues Orders And Releases Opinions
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November 25, 2020

As Washington begins to think about a post-Trump era come January, the Supreme Court will be left holding the bag, so to speak.

Even as the 45th president leaves office, the Court faces a slew of Trump-related cases, including his administration's bid to exclude undocumented immigrants from the reapportionment of House seats, a congressional request for secret materials from the Mueller investigation, and appeals involving the president's tax returns and Twitter account.

Chief Justice John Roberts has steered the Court through Trump-related controversies such as the administration's push to terminate DACA and add a citizenship question to the census form. Whether he retains his commanding stature following Justice Amy Coney Barrett's confirmation remains to be seen.

Of immediate concern for the Court is an accelerated case involving a White House directive to remove illegal aliens from the population baseline used to award House seats among the states. The justices have agreed to hear arguments in that controversy on the Monday after Thanksgiving. Census figures are due to the president by December 31, and the White House must share a final apportionment with Congress by January 10, 2021.

The stakes are high for blue states with large undocumented populations ahead of a redistricting process that will favor the GOP. The White House directive predicts California alone could lose three congressional seats if the government prevails and untold millions in federal dollars allocated by population.

A three-judge panel in New York City blocked Trump's reapportionment order in September. The court said two federal statutes controlling the census leave no room for Trump's policy. Those laws, the court found, require that census officials report a single set of figures to the president—namely, "the tabulation of total population by states"—and that the president must then send an apportionment scheme to Congress based solely on this tabulation.

The Trump administration counters that the plaintiffs have no basis, called standing, for challenging the directive. Even if they do, they argue federal law gives the executive branch significant discretion in administering the census.

While the justices may be able to dodge other Trump-related cases, the Court will have to resolve the reapportionment case before Trump leaves office because of the deadlines in the census laws.

Another dispute involves a House Democratic effort to obtain materials from the Mueller grand jury that are currently shielded by secrecy rules. The House Judiciary Committee told lower courts it needs that evidence to decide whether a second round of impeachment articles are necessary.

The relevant rules allow for release "in connection with a judicial proceeding." The initial question was whether impeachment counts as such a proceeding, but Biden's victory scrambled the legal landscape.

The House Judiciary Committee asked the justices on Tuesday to reschedule arguments in the case, now set for December 2. A lawyer for House Democrats told the justices that the committee will reevaluate its pursuit of the grand jury materials once the new Congress is seated and President-elect Joe Biden takes office in January. The House did not propose an alternative argument date.

Other cases have more obvious outs for the Court.

A pressing concern for Trump himself is whether Manhattan district attorney Cyrus Vance can enforce a subpoena for his financial records. The High Court in July rebuffed arguments that the president is absolutely immune from state criminal process but allowed Trump to challenge Vance's subpoena on other grounds. The Manhattan prosecutor has since prevailed in another round of litigation. Trump filed an application asking the justices to stay those victories, or put them on hold, while he prepares a formal appeal.

A fourth case asks whether First Amendment free speech protections bar the president from blocking critics on Twitter. Two lower courts said the answer is yes.

By January, Trump will be a private citizen. That's a challenge for him because his arguments in the Vance case stem in part from his unique position as president. And in the Twitter case, a Biden DOJ could simply back out of the dispute.

"I think the Court might want to slowplay those as much as possible," said Washington University law professor Dan Epps, who studies the Supreme Court. "I'm not sure if they will feel comfortable stalling until January but it's definitely not impossible. I'm sure the chief would be happy to do that, but some of his more conservative colleagues may not like that approach."

Legal papers for the Vance case and the Twitter case were submitted over a month ago. The long delay in the Vance dispute in particular could indicate that some of the justices are looking for an exit strategy, as stay requests are usually processed quickly. Holding those cases past the inauguration would be unusual but not unprecedented.