Supreme Court Indicates Constitution No Longer In Effect

I know that sounds click-bait-y, but I think it is the most accurate description of what the six conservatives on the Court are doing. Once again, the Supreme Court has allowed a clearly illegal action by trump to move forward — this time the dismantling of the Department of Education.

First: yes, this action is illegal. Congress did not tell the executive that certain things had to be done and allow the executive to decide how to make those tasks come to fruition. It explicitly created a Department of Education and tasked it with carrying out those tasks. Moving a task form the Department of Education to HHS, for example, one of Trump’s goals, is not legal. By allowing this to go forward, the conservatives on the court are placing their policy preferences ahead of the Constitution.

Now, this does not mean that elections no longer matter or that we are entirely a democracy free zone. Fixing this, and I will get to that potential in a minute, will require control of Congress and the Presidency. What it does mean is that the Constitutional order no longer functions. Congress cannot make laws in any meaningful sense — if the President can ignore the explicit instructions of Congress, then they are not making laws. They are codifying preferences. Elections for president are now elections for kings — free to act as they see fit without check by any of the other branches. Congress is reduced to, at best, an investigation machine.

The Supreme Court clearly intends for this new order to apply only to Republican presidents. They did not show this deference to Biden, several times stopping his actions even when the law was clearly on his side, even when they later ruled that the law was on his side. However, they are completely underestimating the anger they are engendering. At the rate they are going, the moderate position is going to be reforming the Court. The left position will be its dissolution and trials for corruption.

That is the best case — Democrats win control on 2028 and reform the Court and reestablish the government as it was. People who broke the law are prosecuted, DC and Puerto Rico, if it wants it, are added as states and the House is expanded, with proportional representation. The Constitution is restored. But that is the best case.

It is possible that the Dems take control, and they do not implement the reforms that are required. In that case, it’s possible that the Court allows the Dem president to wield the same powers it grants trump, confident that the next GOP president will undo them all. Elections are then competitions to elect the next king, with Congress acting either as a rubber stamp or trying to run investigations with an Executive that will refuse to submit to subpoenas. But that is not the worst case.

The worst case is that the Court clamps down on every attempt by the next Democratic president and Congress to undo the damage Trump has done. They make themselves supreme until the next GOP president is elected. At that point, either we have a crisis, or the Dems give up and allow that situation to persist. And that means, essentially, GOP rule whatever the public actually wants. That is an untenable situation and will lead to a backlash and an actual confrontation. I don’t know where that ends, but it will not be easy.

In the meantime, Trump will be allowed to either ignore laws via these emergency relief decisions long enough to implement the policy that the Supreme Court conservatives want, with token rulings after the damage has been done against his actions. These rulings will not force a correction but will establish that the next president cannot undo the damage in the same way it was inflicted. More likely, they will establish a precedent that they do not intend to allow the next Dem president to follow. It would not surprise me if they allow Trump to run for a third term, and birthright citizenship is not assured to survive.

The Constitution is dead. The Court has decided that it rules, and it will place the policy preferences of itself and Presidents of its party ahead of the law. Congress has been rendered irrelevant. This is not an irretrievable situation, but it is one that has to be faced head. The fight now is for what order replaces the Constitution that the Court has just killed. We still have a rights-protecting democracy, but only if we are willing to rapidly correct the wrongs of this Court.