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Trump’s Victory Expands the Supreme Court — and Shrinks Its Docket

Friday, November 11, 2016 8:07
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Josh Blackman

President Obama’s administration has been defined by executive actions issued in response to congressional gridlock. At every stage, conservatives challenged those actions as violations of the separation of powers, and with the election of Donald J. Trump, each of them can now easily be rescinded. Though the Supreme Court will expand with a Trump nominee to replace Justice Scalia, its docket will get a lot smaller. What Obama’s pen-and-phone giveth, Trump’s Sharpie-and-Twitter will taketh away.

First, the Court’s immigration docket is set to shrink. In June 2016, the Supreme Court divided four-to-four on the legality of Obama’s executive action on immigration, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Currently, the case is pending before the federal district court in Brownsville, Texas, but it won’t be for long. Once the policy is rescinded, as Mr. Trump has promised it will be, Texas will move to dismiss the case. A bigger question looms over Obama’s 2012 immigration action, known as Deferred Action for Childhood Arrivals. DACA was not held up by the courts, and nearly 1.5 million aliens have received lawful presence under it. President Obama may renew those benefits for an additional two years, but Trump could cancel them instantly.

The president-elect could very quickly dismantle Obama’s legacy of executive action.

Second, the Court will not have to decide another thorny religious-liberty conflict. Last May, the Justices were unable to resolve the appeal of the Little Sisters of the Poor, an order of nuns that objected to Obamacare’s contraceptive mandate. Religious charities, including the Little Sisters, objected to Obamacare’s contraceptive mandate. The government insisted that female employees of the charities must be provided contraceptive coverage through the same health-insurance plan that covered their regular doctors’ visits. The charities did not object to their employees using contraceptive coverage, but wanted it to be provided through a differentplan entirely separate from their own agreements with insurers. Through one simple regulatory process, Trump could satisfy the Little Sisters of the Poor while providing female employees contraceptive coverage on a separate plan. Though it would create a slight burden for the employees, they’d get their coverage, and the Nuns would not feel complicit in sin. The Justices, who were torn by this difficult ethical question, could take a pass.

Third, the Justices will likely not have to determine the validity of the Obama administration’s policy prohibiting discrimination against transgender students in public-school bathrooms. The case of Gloucester County School Board v. G.G. concerns the Department of Education’s interpretation of Title IX of the Education Amendments of 1972: Does discrimination on the basis of “sex” include discrimination on the basis of gender identity? Obama’s DOE answered that question affirmatively in a “Dear Colleague” letter sent to educational institutions nationwide, rather than through the formal notice-and-comment rule-making process. A Trump administration could simply withdraw the “Dear Colleague” letter, and ask the Supreme Court to take the case off its docket. Schools would still be free to provide protections to transgender students, but could not be compelled to do so by the federal government.

Fourth, President Obama’s climate-change agenda is toast. With a simple executive order on January 20, 2017, President Trump could withdraw the so-called “Clean Power Plan.” The Environmental Protection Agency would then commence a new rule-making process to rescind the Obama administration’s interpretation of the Clean Air Act. And the Justice Department would ask the D.C. Circuit Court of Appeals to put the pending litigation on hold. (Recall that one of Justice Scalia’s last acts before he passed away was to halt the Clean Power Plan while the case was still pending.) Once the rulemaking process is complete, President Trump could formally withdraw from the Paris Agreement with the United Nations Framework Convention on Climate Change. Without the participation of the United States, the agreement will likely fall apart.

Fifth, the case of House of Representatives v. Burwell will draw to a premature close. The Obama administration has made payments to insurance companies that Congress never appropriated. Speakers John Boehner and Paul Ryan have pursued litigation to challenge the legality of these payments. Once the Trump administration halts the subsidies, the case will be dismissed. Insurance companies will still be free to bring private causes of action against the government, but the House’s litigation will wind down.

More generally, the insurance companies will have to deal with a unified government committed to repealing Obamacare. Because the Affordable Care Act was enacted in 2010 through the reconciliation process to avoid a Republican filibuster, the law can also be repealed through the same process in 2017. I am already planning the final book in my Obamacare trilogy. The first book was titled Unprecedented. The sequel, released last month, is titled Unraveled. The final entry will be called Undone.

Josh Blackman is a constitutional law professor at the South Texas College of Law, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.


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