The Supreme Court’s role as a co-equal branch of the federal government may soon be put to the test.  While various issues relating to President Trump’s decisions are percolating in lower courts, one that has received much attention recently is his Executive Order on Immigration.  Yesterday the Ninth Circuit heard oral arguments regarding the temporary restraining order on the Executive Order issued by federal district court Judge Robart.

The Court has historically been viewed and described as weak compared to the other branches of the federal government.  Alexander Hamilton described it as such in the Federalist Papers #78, “It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.” Further evidence of the Court’s reluctance to engage in cases that weigh on decisions from the other branches of the federal government stems from the “Political Questions” doctrine that was defined in the 1962 case of Baker v. Carr.  Add to this the question of whether Washington State even suffered a cognizable injury as is required for standing and there is a distinct possibility that the Supreme Court will not directly rule on the merits of such a case even if requested to do so.

Signs also point towards Justice Roberts’ reluctance to become involved in political disputes, especially after the Court’s decision (and the backlash to it) in Bush v. Gore.  Let’s say hypothetically though that the Supreme Court does become enmeshed with this decision.  A 4-4 split vote would uphold the decision of the lower court, the Ninth Circuit in this case.  This Supreme Court and especially Chief Justice Roberts may not be satisfied with such an outcome.  Although there is not a great amount of recent historic evidence of the Court’s decisions in cases that involve executive actions, there are a few ways to probe the Court’s willingness to engage in such questions as well as possible outcomes.

We only have to look back a few years to the Court’s decision in NLRB v. Canning for an instance where the Justices held unanimously that President Obama overstepped his Recess Appointment power by making appointments to the National Labor Relations Board during a pro forma session of the Senate.  The Court has engaged in cases examining executive power, however, as long as the Court has existed.  The following graph presents a general look at the Court’s frequency of looking at cases tied to questions of executive power by showing the number of cases by term that reference the President and “executive power.”  The red line shows the (minimally) increasing trend over time.

While this presents some evidence of the Court’s willingness to engage in cases that at least describe issues of executive power, this in and of itself does not provide evidence of the current Court’s practice.  While there is no way to predict how the Justices would rule based on the facts of this case, there have been several decisions directly examining executive power in the last several decades that involved some or all of the current Justices.

These twelve cases include (with the Court’s language regarding the executive power at issue):

• Bank Markazi v. Peterson(2016) where the Court held “22 U.S.C.S. § 8772 does not transgress constraints placed on Congress and the President by the U.S. Constitution. The statute is not fairly portrayed as a ‘one-case-only regime.’”
• Zivotofsky v. Kerry (2015) “Based on the text and structure of the Reception Clause, U.S. Const. art. II, § 3, and the President’s additional article II powers set forth in U.S. Const. art. II, § 2, cl. 2, as well as related judicial precedent and the accepted understandings and historical practice, the power to recognize or decline to recognize a foreign state and its territorial bounds resided in the President alone.”
• NLRB v. Canning (2014) “Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the [Recess Appointments] Clause. Applying this standard, we find that the pro forma sessions were sessions for purposes of the Clause.”
• Free Enter. Fund v. Pub. Co. Accounting Oversight (2010) “The Sarbanes-Oxley Act not only protected Board members from removal except for good cause, but withdrew from the President any decision on whether that good cause existed. That decision was vested instead in other tenured officers–Security and Exchange Commissioners–none of whom was subject to the President’s direct control. The result was a Board that was not accountable to the President, and a President who was not responsible for the Board.”
• Medellin v. Texas (2008) “Nor could the President unilaterally execute a non-self-executing treaty by giving it domestic effect, as the power to implement such a treaty fell to Congress.”
• Hamdan v. Rumsfeld (2006): “On the merits, the military commission convened to try petitioner lacked power to proceed as its structure and procedures violated the Uniform Code of Military Justice. The President’s practicability determination was insufficient to justify variances from the procedures governing courts-martial.”
• Cheney v. United States District Court (2004) [Vice-President]: “[t]he Court of Appeals, relying on its mistaken reading of United States  Nixon, prematurely terminated its inquiry after the Government refused to assert privilege and did so without even reaching the weighty separation-of-powers objections raised in the case, much less exercised its discretion to determine whether ‘the writ is appropriate under the circumstances.’”
• Crosby v. National Foreign Trade Council (2000): “Because the state Act’s provisions conflict with Congress’s specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause.”
• Raines v. Byrd (1997) “Congress passed the Line Item Veto Act (the Act), 2 U.S.C.S. § 691 et seq. (supp. 1997), which gave the President the power to cancel items in any bill… individual members of Congress do not have a sufficient “personal stake” in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing [emphasis added].”
• Clinton v. Jones (1997) “The separation of powers doctrine does not require federal courts to stay all private actions against the President until he leaves office. Even accepting the unique importance of the Presidency in the constitutional scheme, it does not follow that that doctrine would be violated by allowing this action to proceed.”
• Loving v. United States (1996) “The delegation to the President as Commander in Chief of the authority to prescribe aggravating factors was in all respects consistent with these precepts, and the promulgation of RCM 1004 was well within the delegated authority. Loving’s sentence was lawful”
• Public Citizen v. United States Dep’t of Justice (1989) “Whether the ABA Committee is an “advisory committee” under FACA depends upon whether it is “utilized” by the President or the Department within the statute’s meaning. Read unqualifiedly, that verb would extend FACA’s coverage to the ABA Committee. However, since FACA was enacted to cure specific ills – particularly the wasteful expenditure of public funds for worthless committee meetings and biased proposals by special interest groups – it is unlikely that Congress intended the statute to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice.”

The Table below looks at the set of these cases where the Court ruled on the Presidential power at issue and how the Justices voted in these cases.

What can we tell from these decisions? First the more conservative justices do not always support Republican Presidents’ actions and vice-versa.  Second, the Court tends to be very decisive or extremely split in these cases.  In four of the ten cases the Justices split 5-4 along ideological lines and the Justices ruled unanimously in another four.  This indicates that the Court tends to be particularly divided or to cohesive in such cases but that there is little room in between.

Since the current decision that the Court might examine is forthcoming from the Ninth Circuit, one other element to look at is the Justices’ relative agreement with the Ninth Circuit’s decisions.  Since Justice Roberts was confirmed to the Court in 2005, the Court has issued written and signed opinions in 153 cases that were previously heard by the Ninth Circuit.  There is a notion among legal scholars (although somewhat disputed) that the Supreme Court often opposes decisions from the Ninth Circuit.  Below are the Justices’ rates of voting to affirm decisions from the Ninth Circuit since 2005 (Justice O’Connor was eliminated from this figure as she was present in only a handful of these decisions).

All Justices rates are under 50% with Justice Stevens’ the highest at 49% and Justice Scalia’s the lowest at 18%.  Clearly the Justices’ rates of voting to affirm Ninth Circuit decisions is on the low end.  While this shows how the Justices have voted on Ninth Circuit decisions generally, it does not account for the particulars of this case and the issues involved.  If this case goes to the Supreme Court, it is still anyone’s guess how the Court will rule if it comes to a decision on the merits at all.

On Twitter: @AdamSFeldman

Update: 2/9/2017

With the Ninth Circuit panel unanimously upholding the TRO it looks likely we will see this case move forward.