On Friday, I was a guest on the Texas Standard, a program that runs on public radio stations throughout the Lone Star State. We discussed how the Court’s docket may change after the new administration comes to town.
And a provocative new column in the National Review suggests one of the earliest steps Mr. Trump might take after the inauguration would be to lighten the Supreme Court caseload.
Josh Blackman, professor at Houston’s South Texas College of Law, says Trump will likely bring the Supreme Court back up to nine justices, then quickly clear cases from their docket.
“One of the most amazing parts of the Obama administration is how much has been accomplished by executive action,” Blackman says. “Whatever President Obama’s pen and phone giveth, Donald Trump’s Sharpie and Twitter can taketh away. And by the stroke of a pen, he can make a lot of these cases simply go away.”
The first case likely to be dismissed is U.S. v. Texas:
In 2014, Obama issued executive actions allowing five million immigrants without legal U.S. documentation who are parents of citizens or lawful permanent residents to apply for work permits and safety from deportation.
Texas and 25 other states filed a lawsuit. On Feb. 2015 a federal courttemporarily enjoined the government from moving forward on DAPA and an expanded DACA. The Supreme Court split four to four on the case and the suit is proceeding to trial.
“This case is gone,” Blackman says. “I fully expect on Jan. 20 President Trump will sign an order saying DAPA is fired.”
Second, the Title IX litigation will take a new direction.
On May 13, President Obama – through the U.S. Departments of Justice and Education – issued a letter asking every public school district in the country to allow students to use bathrooms that matched their gender identity. As a basis for this directive, the Obama administration interpreted Title IX, which says you can’t discriminate on the basis of sex, as including gender identity.
Texas and 10 other states filed suit stating the guidance has no basis in the law and could cause negative changes in the operations of public school districts. The Supreme Court has said it will take up the case.
“A Trump administration can simply withdraw that letter – in which case the Texas case goes away,” Blackman says. “There’ll be a serious shift in how the transgender bathroom cases proceed.”
There’s another case from Virginia regarding whether a high school student transitioning from female to male is permitted to use the boys’ bathroom. Blackman says the case could stick around or get sent back to a lower court.
Third, regarding Zubik v. Burwell, I told the Texas Standard:
“There’s a very strong chance that the Trump administration will say ‘Okay religious charities … we’re simply going to exempt you from the mandate altogether,’” Blackman says. “Maybe the government will pay for women’s birth control, [or women] will get it through a different plan. … I think this is a likely way that this case can be resolved without the Supreme Court having to delve into these thorny issues of religious liberty once again.”
Finally, concerning the Clean Power Plan:
Two dozen states, including Texas, and a coal mining company filed a lawsuit against the Environmental Protection Agency over an August 2015 Obama Administration mandate requiring states to cut carbon emission. The directive asked states to shift from coal to natural gas and renewable energy by 2030.
“We have this Clean Power Plan to impose vast restriction in how much CO2 we can emit,” Blackman says. “This is all done through executive action. … President Trump can simply withdraw the Clean Power Plan, undo the regulations issued by the EPA. … This is a consequence of not achieving enduring change through statute and the Clean Power Plan is basically gone.”
I will offer more thoughts in a post later today about how these cases, specifically, may be handled.