‘Trump Term’ Could Be Coming to Supreme Court

Supreme Court nominee Brett Kavanaugh, his wife Ashley Estes Kavanaugh and their two daughters stand by US President Donald Trump after he announced his nomination in the East Room of the White House on July 9, 2018 in Washington, DC. (Photo by MANDEL NGAN / AFP) (Photo credit should read MANDEL NGAN/AFP/Getty Images)

Next term could be the “Trump term” at the U.S. Supreme Court.

Several issues important to the Trump administration are already on the high court’s docket, including immigration and the reach of administrative agency power.

And more issues at the center of President Donald Trump’s agenda wait in the wings, court watchers told Bloomberg Law.

Last term, the Supreme Court punted on a number of potentially blockbuster issues, like those involving religious liberty, LGBT rights, and partisan gerrymandering. But the Supreme Court handed the administration a clear victory in the litigation over the president’s travel ban.

Next term could see more headline-grabbing victories—or defeats—for the president’s agenda.

Criminal Immigrants

Nielsen v. Preap, which the justices have set for oral argument on Oct. 10, gives the court the opportunity to weigh in on one of the administration’s central platforms: immigration.

Trump took a hard line on immigration early in the 2016 presidential campaign, suggesting that immigrants who commit crimes were overwhelming America’s borders.

Nielsen deals with the 30,000 immigrants—some of whom have been convicted of crimes unrelated to their immigration status—held every day by the government while they await deportation proceedings. Many are held under “mandatory immigration detention.”

Under the Immigration and Nationality Act, immigrants convicted of certain crimes are automatically subject to such detention once they’ve completed their criminal sentences.

The idea is that those criminal immigrants pose a unique risk to society and should not be released while their deportation is pending. But the mandatory detention applies to a “broad range of crimes,” from “serious felonies to misdemeanor offenses involving moral turpitude and simple possession of a controlled substance,” the U.S. Court of Appeals for the Ninth Circuit has said.

Several circuit courts have held that criminal immigrants are subject to mandatory immigration detention even if picked up years after they’ve been released from criminal custody.

The Ninth Circuit disagreed.

Immigrants that have “resettled into the community after release from criminal custody” aren’t subject to mandatory detention, it said in 2016. Immigrants “may still be detained,” but they are entitled to seek release via bond by showing that they pose “neither a risk of flight nor a danger to the community,” the Ninth Circuit said.

The Trump administration argues that an immigrant convicted of crimes is still subject to mandatory detention “regardless of whether DHS arrested him immediately upon his release from criminal custody.”

A contrary decision would create “serious practical problems” for the administration, it says. The federal government “cannot always be standing at the jailhouse door waiting to take custody of every criminal alien at the very moment he is released,” the government said.

Curbing Agency Power

Another Trump priority is reining in administrative agencies, which the court will have an opportunity to do in Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv.

In this case, the Trump administration is coming down on the side of the administrative agency.

However, in the past the Trump administration has taken actions to erode agency power.
The administration has shown hostility to agencies by refusing to fill agency posts and rolling back regulations by requiring agencies to repeal two regulations for each new one it adopts.

The court may advance that cause in Weyerhaeuser.

There, the Fish and Wildlife Service designated private land in Louisiana as a critical habitat for an endangered species of frog, even though it no longer resides there.

The administration argues that the agency has that power under the best reading of the Endangered Species Act.

The court can agree with the administration on that point and still curtail what’s known as “Chevron deference”—a doctrine requiring that courts defer to an agency’s reasonable interpretation of an ambiguous statute, Anthony Caso, of the Center for Constitutional Jurisprudence in Irvine, Calif., told Bloomberg Law.

CCJ filed an amicus brief in Weyerhaeuser opposing the agency.

Trump’s first high court nominee, Justice Neil M. Gorsuch, has been skeptical of Chevron and other agency deference doctrines. His most recent nominee, Judge Brett Kavanaugh, has a similarly skeptical view.

Justice Anthony M. Kennedy, whom Kavanaugh would replace if confirmed, was also skeptical of agency deference in his later years on the court, Caso said.

Kavanaugh has “long-held positions against deference afforded to agencies,” Jonathan Turley, of the George Washington University Law School in Washington, told Bloomberg Law.

Eroding agency deference could be the biggest shift under a newly constituted court; both Gorsuch and Kavanaugh appear willing to go further than Kennedy did in curtailing agency power, Wendy Weiser, of the Brennan Center for Justice, New York, told Bloomberg Law.

Doing so would undermine the power of the government, which operates largely through administrative agencies, Weiser said. That’s something the administration would likely welcome, she added.

DACA, Sanctuary Cities, and More

Weiser said to expect more suits attacking elements of the administration’s agenda to come to the court this term.

The justices will add cases to their docket when they return from summer break in late September and will continue to add cases for the term until mid-January.

Cases dealing with the administration’s cancellation of the Obama-era Deferred Action for Childhood Arrivals program and the Department of Justice’s targeting of “sanctuary cities” are the most likely to get up to the court next term, Stephen I. Vladeck, a professor at the University of Texas at Austin School of Law, toldBloomberg Law in June.

A challenge to the administration’s addition of a citizenship question on the census will also likely get up to the court soon, Weiser said. With the 2020 census looming, time is of the essence, she said.

‘Witch Hunt’

Another issue that’s long vexed the administration—the Mueller special counsel investigation of Russia’s meddling in the 2016 election—may come before the justices, too, Weiser said.

The president calls the investigation a “witch hunt” and has called for it to end. That doesn’t seem likely to happen anytime soon, as the Mueller team has recently filed several indictments.

If anything related to the investigation were to touch the president, it will likely make its way up to the high court—and fast, Weiser said. That’s the kind of case that the Supreme Court would want to decide for itself, and previous matters involving Presidents Bill Clinton and Richard Nixon have gotten to the justices quickly, she said.

“The most likely controversy to reach the Supreme Court would be a fight over a subpoena to appear before a grand jury,” Turley said.

“Kavanaugh has expressed obvious empathy with presidents in not having to deal with investigations during their terms,” he added.

He “expressed these views in the Minnesota Law Review in terms of Congress creating protections as opposed to arguing that the Constitution itself protects presidents,” Turley said, referring to a 2009 law review article. “Nevertheless, Kavanaugh is clearly more empathetic and receptive for executive privilege arguments,” he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com