The Supreme Court has a new way to hand President Donald Trump victories that threatens to leave “blatant” lawbreaking unchecked, a legal scholar warned.
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Erwin Chemerinsky, the dean of the University of California, Berkeley School of Law, laid out the warning during an interview with Slate’s Amicus podcast. Rather than deciding whether Trump’s actions are lawful, the court’s conservative majority has been increasingly tossing lawsuits against him on procedural grounds and deciding no one has the right to sue in the first place, Chemerinsky warned.
“If no one has the ability to go to court to challenge something, then the illegal and unconstitutional action will continue,” Chemerinsky said.
He pointed to the court’s emergency-docket order last week in the case over the demolition of the White House East Wing and Trump’s roughly $600 million ballroom project. A 5-4 majority threw out the challenge on standing and ruled that the plaintiff who objected had suffered no real injury. Chemerinsky noted that no justice in the majority claimed the project itself was legal.
Chemerinsky tied the ruling to a case from the prior week over Trump’s attempt to reshape federal election procedures, which the Supreme Court also dismissed on standing and ripeness grounds.
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“The most blatant constitutional violations will go unchecked unless there’s a court to say no,” Chemerinsky warned. “The reason we give courts the power to strike down executive and legislative acts is the limits of the Constitution are meaningless unless there’s someone there to enforce them.”
He pointed out that the maneuver was a quiet one because procedural rulings draw less attention and public backlash.
“That doesn’t resonate with people. It’s too abstract,” Chemerinsky said. “So if the Supreme Court would have handed down a ruling on Monday saying destroying the East Wing and building the ballroom is constitutional and legal, that would have, of course, gotten more headlines.”
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