Experts love to make predictions. And in most industries, experts are more reliable than a random guess. But my fellow lawyers have fallen into a trap. Especially those with columns and blogs will write boldly titled articles like “[Something] Is Not Constitutional.”
This game used to be somewhat easier to play when stare decisis mattered, when it mattered to the Supreme Court, and when whether or not the Supreme Court was liberal or conservative, it stuck with certain holdings, especially in regards to the Constitution.
And since, like me, many of the lawyers with blogs and columns were educated in that period, they tend to fall back on this way of thinking, the way of analyzing a case by boiling it down to its pertinent facts and comparing it to the relevant law. This way of thinking has been unreliable in large federal cases for a long time, but all of have been on notice since 2000’s Bush v. Gore.
The problem with that case wasn’t so much that it installed Bush as president. Had the Court allowed the Constitutional procedure to be followed, it is likely that by a vote of the House by state he would have been anyway (with the retroactively disturbing prospect of Joe Lieberman as Vice President). It’s that it overrode that Constitutional procedure and it did so through the abandonment of principles by several self-affirmed “states’ rights” justices, including Rehnquist and Scalia.
Since that time, carefully selected cases demonstrated that with respect to Scalia at least, his views on federalism conformed to whatever advantaged the conservative agenda.
So, it would have been correct for CJ Roberts to say there were no Trump judges and no Obama judges, though only a fool would deny there were conservative judges and liberal judges. But now it seems there may be at least one truly “Trump” judge in the sense that his politics are whatever favors Trump, just as the Republican party, having long ago stopped being the conservative movement party, has now stopped being the white nationalist party and started being simply the cult of Trump.
So when Trump declares a national emergency in a seeming mockery of the statute ostensibly giving him the power to do so in a pique of babyness typical of his decayed brain, of course, the bloggers and the columnists tell us, based on the analysis of yesteryear, why it will succeed.
Some articles have cited the kind of fig-leaf arguments that have been used to undermine politically unsavory legislation in the courts lately, like “of course the military is deployed there so anything you do near there is an emergency. QED.” I think a much more likely defense is that Congress retains the power to override the president should they choose to do so, the kind of separation of powers argument that would sound good to a legal scholar but is massively tone deaf in this partisan era where party supersedes branch.
Whatever the pretext is, I suspect the Supreme Court will uphold this and other uses Trump makes of this power. I suspect that the very same justices will find some other schizoid reasoning to prevent any future Democratic president from doing the same in the very situations threatened by Democrats today, perhaps by distinguishing its use from something involving a Constitutional “right,” as they have developed it from the Second Amendment to prevent its use with guns, or something “purely economic” in the case of the Green New Deal, where at least this emergency involves foreign relations which is normally largely part of the President’s Article II powers. Whatever’s clever at the time.
But I have no prediction, certainly not one based on law instead of politics, especially since Roberts’s agenda as a swing voter seems to be to strike some semblance of a political balance to save political capital for his particular anarcho-plutocratic agenda. Maybe he will choose this one, maybe not.
Democrats will scream and the press will mostly agree with them, but it will change almost no ones opinion.
I hope I’m wrong, but I doubt I am.