US Supreme Court expands its 'emergency' docket - and Trump's power too

As she has done several times recently, liberal Justice Elena Kagan last week sounded the alarm after another bold emergency action by the US Supreme Court's conservative majority again let President Donald Trump carry out one of his policies without taking the usual time or deliberation to review its legality.

The court, which has a 6-3 conservative majority, allowed Trump to withhold $4 billion in foreign aid despite a judge's decision that he cannot simply not spend funds appropriated by Congress. The emergency docket, with its scant briefing and lack of oral arguments, Kagan wrote in a dissent, was not appropriate for yet another high-stakes decision from the top US judicial body given the "uncharted territory" of the dispute.

Typically, Kagan wrote, "we will decide cases of far less import with far more process and reflection." When the justices start their new nine-month term on Monday, they will assess their regular cases over months before issuing definitive rulings.

Since Trump returned to office on January 20, the court has acted in 23 cases on an emergency basis involving his policies, siding with him fully or partially 21 times, with one case declared moot.

In doing so, the court has expanded how it uses its emergency power, following at least six different legal paths to side with Trump, usually in decisions powered by the conservative justices, a Reuters analysis has found.

While the court has faced criticism for issuing its decisions on its emergency docket - also called the "shadow" or "interim" docket - often with little or no explanation, in 14 of the 21 cases backing Trump it has presented at least some rationale, the Reuters analysis showed.

These decisions have let Trump's aggressive and sometimes novel uses of executive authority proceed largely unhindered before their legality is fully determined, increasing his power in ways that critics have said undermines Congress and the various federal judges who have ruled against him.

Here are six paths taken by the court this year in deciding Trump-related emergency docket cases:

- It identified specific errors by federal judges in four cases. For instance, it said that several nonprofit groups that had challenged the administration's firing of thousands of federal probationary employees lacked the legal standing to sue.

- It paused two lower court decisions against Trump by applying the traditional legal test for deciding whether a challenged policy should be blocked while litigation plays out. This test often hinges on a prediction of which side is likely to prevail on the legal merits. One of those cases allowed Trump to pursue mass federal layoffs.

- It signalled in cases involving Trump's firing of Democratic officials from federal agencies that it potentially will overturn an existing legal precedent.

- It twice issued opinions that lawsuits challenging a Trump policy were brought in the wrong lower court. One of those cases was a challenge to Trump's use of a 1798 law, historically used only in wartime, to carry out deportations.

- It cited its own previous emergency decisions as binding on lower courts, for instance one in which the justices allowed Trump's cuts to National Institutes of Health grants for research related to racial minorities or LGBT people.

- And in one instance - the administration's challenge to judicial rulings against his bid to restrict birthright citizenship - it issued a ruling after hearing oral arguments.

The Boundaries of Power

The actions by the justices have expanded the emergency docket's "effective power without the court formally acknowledging it," Bradley University law professor Taraleigh Davis said.

This expansion in turn boosts Trump's power, Davis added, because if administration officials know they are "likely to receive a stay on the emergency docket they can implement controversial policies immediately and fight the legal battle with the policy already in effect."

The court in emergency decisions has let Trump ban transgender people from the military, carry out mass firings of federal employees, remove agency officials despite statutory job protections and deport migrants to countries where they have no ties like South Sudan, to name a few, while litigation continues in lower courts. The practical effects of some of these decisions could be hard to unwind even if plaintiffs eventually win on the legal merits.

"These aren't decisions that somehow maintain the status quo. If they give the president the benefit of the doubt, that might mean that your husband ends up in an El Salvador prison ... that means your research doesn't get funded," Tulane University constitutional law professor Stephen Griffin said.

The fact that the justices are treating their emergency decisions as binding on lower courts has surprised and vexed some judges who did not understand that such actions carried the same force of precedent as the Supreme Court's regular rulings. Treating these orders as precedent creates tension, Davis said, because such orders previously were thought to "decide only on interim relief, not the legal questions. But if lower courts have to follow this reasoning as precedent, then emergency docket orders are effectively deciding the law."

The court signalled it may overturn its 1935 precedent that permitted laws restricting a president's power to oust members of independent agencies without cause. This came when it allowed Trump's firing of Democratic members of various independent federal agencies, opens new tab without cause.

The one Trump-related emergency case that has been the subject of oral arguments involved his effort to restrict birthright citizenship. The justices did not decide the policy's legality, but instead issued a major ruling buttressing presidential power by curbing the authority of federal judges to block policies nationwide.

Liberal Dissent

The outvoted liberal justices repeatedly have warned that the emergency docket should not be used to make "new law" or, as Kagan said in September when dissenting from a decision allowing Trump's firing of a Federal Trade Commission member, "to permit what our own precedent bars."

Justice Ketanji Brown Jackson in August compared the emergency docket to "Calvinball," a game from the comic strip "Calvin and Hobbes" in which the one rule is that there are no fixed rules.

"We seem to have two: that one, and this administration always wins," Jackson wrote.

Griffin noted that many of the court's emergency actions have come in policy areas where it traditionally has given deference to presidents such as immigration, foreign affairs and firings. Its conservative majority also has increasingly embraced a legal theory called the "unitary executive" placing power over the executive branch solely in the hands of the president, Griffin noted.

"The conservatives on the court do not think that they've crossed some line," Griffin said.

Conservative Justice Amy Coney Barrett, who Trump appointed to the court in 2020, was asked during a question-and-answer session at an event in New York last month about the danger of a president's far-reaching actions going unchecked. Barrett responded that a president too can be harmed if an executive order is actually lawful but remains blocked by the judiciary.

Perfectly Fine

The administration has faced more than 300 lawsuits challenging Trump's policies since he returned to office.

"The administration has picked out a small fraction of those to bring to the court, where the arguments that either what it's doing is perfectly fine or the district courts really got out over their skis are easiest to make," William & Mary Law School professor Jonathan Adler said.

The court may be called upon eventually to issue definitive rulings on the merits in some cases in which it has already acted via the emergency docket, meaning it remains possible it would rule against Trump.

For now, however, the court's conservative majority may be trying to give Trump the benefit of the doubt while avoiding a direct showdown with an emergency ruling against him.

"The majority may be trying hard to avoid, or at least maximally postpone, being put in a position when the court is issuing the administration an unambiguous order that Trump may defy," New York University School of Law constitutional scholar Peter Shane said.