This Is the Presidency John Roberts Has Built - The Atlantic [View all]
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No one on the Supreme Court has gone further to enable Donald Trumps extreme exercise of presidential power than the chief justice of the United States, John Roberts. Associate justices have also written some important opinions shaping executive power, and the Court has issued ever more important unsigned orders, but the most transformative opinionsthe opinions that directly legitimize Trumps unprecedented uses of powerare Robertss handiwork. This is not happenstance. Under Supreme Court practice, the most senior justice in the majoritywhich is always the chief justice when he so votesdetermines who will write the main opinion. Roberts reserved these milestones for himself.
And what milestones they have been. Roberts upheld the first Trump administrations Muslim ban on the grounds that the presidents national-security role precludes courts from taking account of the bigotry undergirding an immigration order. He remanded a lower courts enforcement of a congressional subpoena for Trumps financial information, writing that without limits on its subpoena powers, Congress could exert imperious control over the executive branch and aggrandize itself at the Presidents expense. He has come close to giving the president an untrammeled right to fire any officer in the executive branch at will. And he took the lead in inventing a presidential immunity from criminal prosecution that could exempt the president from accountability for even the most corrupt exercises of his official functions.
Going beyond the precise holdings in these cases, Robertss superfluous rhetoric about the presidency has cast the chief executive in all-but-monarchical terms. The upshot is a view of the Constitution that, in operation, comes uncomfortably close to vindicating Trumps: I have an Article II, where I have the right to do whatever I want as president. Trumps confidence is surely bolstered also by the Roberts Courts unsigned per curiam opinions blocking even temporary relief from his sweeping actions. In May, the Court held that Trump orders removing two federal officials at key independent agencies could remain in place while the issue of their legality makes its way through the judiciary. In June, it allowed the administration to proceed with so-called third-country deportationsthat is, deporting undocumented noncitizens summarily to countries to which they had no prior connection, but where they might well face torture. On July 8, the Court effectively allowed Trump to proceed with a massive restructuring of the federal executive branch, notwithstanding that the power over executive-branch organization belongs to Congress, not the president. On July 14, the conservative majority allowed the sabotaging of the Department of Education to proceed. Trumps use of executive power is not a distortion of the Roberts Courts theory of the presidency; it
is the Courts theory of the presidency, come to life.
What America is witnessing is a remaking of the American presidency into something closer to a dictatorship. Trump is enacting this change and taking advantage of its possibilities, but he is not the inventor of its claim to constitutional legitimacy. That project is the work of John Roberts.