How John Roberts Has Empowered a Lawless Presidency

In the first landmark Supreme Court decision of the Trump years, back in 2018, Chief Justice John Roberts established how a President hostile toward a group of noncitizens may bar them under existing immigration laws, so long as the President’s publicly stated reasons for doing so are “facially neutral.” If that test is met, the courts must bow to the President’s action, no matter the evidence of any prior hostility toward the group in question. At the time, President Donald Trump had issued a proclamation banning nationals who were from several Muslim-majority countries—the third iteration of his so-called Muslim ban, which had been hobbled by multiple lower courts. Trump justified his actions by invoking the Immigration and Nationality Act. Roberts wrote that the relevant section of the law “exudes deference to the President in every clause.” Since the proclamation was “within the core of executive responsibility,” Roberts wrote in his opinion, the Court “must consider not only the statements of a particular President, but also the authority of the Presidency itself.”

If there is one person on the Court to whom Trump owes a debt of gratitude for empowering his disruptive, smash-and-grab second term—one marked thus far by a slew of executive orders that insist, in their text, that they are authorized by “the Constitution and laws of the United States”—it is Roberts. His jurisprudence relating to the powers of the Presidency under Article II of the Constitution, which vests the executive power in a single chief executive, represents the purest distillation of the unitary executive theory. This school of constitutional thought, which holds that everyone and everything in the executive branch must yield to the President, has long fascinated conservative legal academics and Republican Presidential Administrations, beginning with Ronald Reagan, under whom Roberts served, as a White House lawyer.

At the end of Trump’s address to Congress earlier this month, the President was caught on camera tapping Roberts on the shoulder, thanking him, and telling him that he “won’t forget.” Many interpreted Trump’s words as a reference to Roberts’s gift, in Trump v. United States, last summer, of granting the President broad immunity from criminal prosecution over his alleged instigation of the January 6th attack on the Capitol. (Trump later claimed that he was thanking Roberts for swearing him in on Inauguration Day.)

But the gratitude should run much deeper. In his nearly twenty years as Chief Justice, Roberts has espoused a sweeping vision of Presidential authority—sometimes with language so broad as to make Congress and the courts appear small by comparison. “The President is the only person who alone composes a branch of government,” Roberts declared during Trump’s first term, when the House of Representatives was attempting to subpoena tax-related documents from an accounting firm that was doing business with Trump and his family. “The entire ‘executive Power’ belongs to the President alone,” he wrote in 2020, in Seila Law LLC v. Consumer Financial Protection Bureau, which invalidated, as a violation of the separation of powers, a statute that had protected the director of the C.F.P.B. from Presidential control. Early in Roberts’s tenure, in a case dealing with removal protections for lower-level officials, the Chief Justice all but telegraphed that a future President would be constitutionally shielded from scrutiny in ordering the mass firing of employees across the government: “The President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them,” Roberts wrote, during the Obama era.

Trump’s embrace of this broad conception of executive power was on display last week in Washington, as his Administration defended its invocation of the centuries-old Alien Enemies Act to deport Venezuelan migrants, its firing of two Democratic members of the Federal Trade Commission, and its hostile takeover of the little-known United States Institute of Peace—to name only three executive actions that grabbed headlines. Each of these represents a breathtaking exercise of executive authority, one that necessarily puts the President on a collision course with the courts and Congress—and one under which, if Roberts’s view is taken to its logical end, the executive branch is bound to prevail.

Consider the arguments that Justice Department officials have been presenting before U.S. Chief District Judge James Boasberg, who is overseeing a legal challenge to Trump’s proclamation that members of Tren de Aragua, a transnational gang from Venezuela, are “alien enemies” subject to immediate detention and deportation without due process of law. The proclamation, which invokes a wartime provision that by its terms requires a declared war or an “invasion or predatory incursion,” was quickly challenged by immigrants’-rights groups. During an emergency hearing the day the proclamation became public, while there was still very little clarity about when it was signed or who had been targeted by it, a Justice Department lawyer suggested that attempting to block any deportations resulting from the proclamation “cuts to the core of the president’s Article II powers,” and that “interfering” with this Presidential prerogative impinges on his authority over foreign policy, war-making, and immigration. Boasberg blocked the deportations anyway, ordering any planes that may be in the air carrying the deportees to return while the litigation played out. This assertion of judicial authority set off an ongoing clash between the Administration and the judiciary—and has raised questions about compliance with court orders, contempt of court, and whether the Administration’s recalcitrance in the face of it all means a constitutional crisis is in the offing. In one filing, the government complained that the President’s “inherent Article II powers, especially when exercised outside the United States, are not subject to judicial review or intervention.”

During an afternoon hearing this past Friday, Boasberg appeared adamant to learn whether the government had defied his order: “I will get to the bottom of whether they violated my order, who ordered this and what the consequences will be,” he said. Earlier in the hearing, he said it was “problematic and concerning” that more than a hundred Venezuelans were deemed deportable as foreign enemies without even a chance to challenge that designation.

The filings in the case, known as J.G.G. v. Donald Trump, have been fast and furious, but it’s clear that the Justice Department is making a big bet that its assertion of Trump’s Article II authority, and his authority under the Alien Enemies Act—which no President has invoked since the Second World War—supersedes that of the courts, which is governed by Article III. How dare a lowly federal judge meddle with the President’s power to conduct foreign affairs? “What began as a dispute between litigants over the President’s authority to protect the national security and manage the foreign relations of the United States pursuant to both a long-standing Congressional authorization and the President’s core constitutional authorities has devolved into a picayune dispute over the micromanagement of immaterial factfinding,” the lawyers for the government wrote in a motion filed last week. “The Court has now spent more time trying to ferret out information about the Government’s flight schedules and relations with foreign countries than it did in investigating the facts before certifying the class action in this case,” that motion concluded.

On Monday, Boasberg issued a careful opinion sidestepping the “complicated legal issues” raised by the case, ruling that people subject to Trump’s proclamation can’t be summarily deported without a hearing. Later that day, the Trump Administration, in keeping with Boasberg’s final deadline to come clean about noncompliance with his earlier orders, invoked Article II and the state-secret privilege instead. That is: Boasberg wouldn’t be getting the details he’s been seeking. In a show of unity, Secretary of State Marco Rubio, Secretary of Homeland Security Kristi Noem, and Attorney General Pam Bondi invoked the privilege jointly, in a trio of sworn declarations. “The Court has all of the facts it needs to address the compliance issues before it,” the Justice Department said in a court notice accompanying the declarations. “Further intrusions on the Executive Branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the Court lacks competence to address.”

For support, the Administration lifted language from Roberts’s immunity decision: “President Trump’s execution of his Article II authorities—which ‘are of unrivaled gravity and breadth’ and include ‘managing matters related to terrorism . . . and immigration’—requires the ‘utmost discretion and sensitivity.’ ”

Layered on top of this back-and-forth between lawyers and judges were the calls for Boasberg’s impeachment, led by the President himself and amplified by a MAGAsphere ready and willing to go along. Amid this furor, Roberts issued a rare statement that many characterized as a “rebuke” of the President. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said. “The normal appellate review process exists for that purpose.”

This statement, as studious and noncommittal regarding its intended target as others that Roberts has issued during his tenure, can be read as a mild-mannered defense of the branch he leads and which is now under attack. Other judges are certainly disturbed by the executive and media blitzkrieg against one of their own. But one thing Roberts’s statement obscures is how much his own jurisprudence has facilitated Trump’s defiance of the other branches of government.

In letters informing Democratic F.T.C. members Alvaro Bedoya and Rebecca Kelly Slaughter that they had been removed from their posts, the President openly flouted the organic statute of the commission, which Congress determined allows him to remove commissioners only “for inefficiency, neglect of duty, or malfeasance in office.” Instead, Trump pointed to his agenda. “Your continued service on the F.T.C. is inconsistent with my administration’s priorities,” one of the letters read, according to the New York Times. As with the invocation of the Alien Enemies Act, the last time a President had attempted to fire a commissioner over mere policy differences was during the Roosevelt Administration. As President Franklin Delano Roosevelt wrote to Commissioner William Humphrey some ninety years ago, “I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission.”