Congress
Trump is about to face an audience with the power to make or break his agenda. And it’s not Congress.
When President Donald Trump speaks to a joint session of Congress Tuesday night, the audience with the most sway over his second-term agenda won’t be the lawmakers. It’s the Supreme Court justices.
Trump’s blitz of early executive actions have triggered a tsunami of more than 100 lawsuits — many of them heading toward the high court. Two of those actions have already made it to the justices, and their looming rulings could strike at Congress’ power to control federal spending and the independence of executive branch watchdogs.
Trump’s muscular moves to crack down on legal and illegal immigration, fire tens of thousands of government employees, shutter the U.S. Agency for International Development, end diversity, equity and inclusion programs and strip the rights of transgender people all raise significant questions about the legal limits of executive power.
“When a president’s agenda relies on unlawful actions, a lot of the action is going to be in the courts,” said Elizabeth Goitein of New York University’s Brennan Center. “There’s no question that all of this is going to be challenged. This will be a true test of the Supreme Court in many, many ways.”
Chief Justice John Roberts and a few other justices typically attend State of the Union addresses, though the full bench doesn’t always show up. The justices sit in the front row of the House floor, typically putting on their best poker faces while the members of Congress around them cheer and jeer.
In previous years, even subtle reactions by the justices have stoked controversy. And this time, the speech will be occurring while the court is facing two imminent decisions that could affect the trajectory of Trump’s term.
The two major disputes about Trump’s assertions of presidential power at the high court have the potential to deliver another jolt to his rocky relationship with the conservative justices, including the three he appointed in his first term.
One involves Trump’s ability to fire executive branch officials despite laws Congress passed to protect those appointees from removal without cause. The other revolves around Trump’s authority to oversee an abrupt and sweeping freeze on billions of dollars in foreign aid. Trump is likely to discuss in his remarks Tuesday some of these efforts as part of his administration’s work to shrink the federal bureaucracy.
At the heart of both cases is Trump’s desire to test and stretch the outer boundaries of executive power — and whether Trump can bypass laws meant to limit his ability to fire people and curtail programs he doesn’t like despite Congress funding them.
The two cases have another thing in common: They have zoomed to the court on the so-called shadow docket, where the justices handle emergency requests. And more requests are likely given the scores of pending challenges to Trump policies.
Trump’s penchant for executive action driving much of the litigation stems from his desire to be seen as getting stuff done and his impatience with process and congressional negotiations. It’s also born out of necessity.
Thanks to a razor-thin GOP margin in the House and the effective veto that the Senate’s filibuster rule hands to Democrats, the prospects for Trump passing much in the way of legislation are minimal. In crudely partisan terms, Trump’s policies may stand a better chance with the six-justice conservative majority he cemented in his first term than they do across the street at the Capitol.
During his first term, Trump repeatedly trashed judges who ruled against him. His invective against the judiciary grew so pointed that Roberts issued an extraordinary statement disputing the president’s description of a jurist who ruled against the administration’s asylum policies as an “Obama judge.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts declared.
During Trump’s first term, his policies got a mixed reception at the Supreme Court. The court largely upheld his pro-business environmental policies and allowed him to spend billions of dollars on his border wall project despite failing to get funding for it through Congress. On the other hand, the court rejected Trump’s effort to end the program for so-called Dreamers.
One of his highest-profile and most controversial moves — the travel ban dubbed a “Muslim ban” by critics — was effectively slowed and watered down by litigation. The high court ultimately let part of the ban take effect and ultimately upheld the president’s authority to issue it.
“Sometimes, if you listen to the mainstream media, you’d think that the court handed him everything on a silver platter, which isn’t true. But I think [they] went his way more often than not,” said Curt Levey of the conservative Committee for Justice. “At least some of the justices didn’t seem crazy about Trump. If you were predicting it based just on ideology, probably more would have gone Trump’s way. But there seemed to be a certain desire to push back against Trump, right? Until I see otherwise this term, I’ll just assume that it’s going to be the same.”
As his first term came to a close, Trump was bitterly disappointed that none of the justices — including his three picks: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — backed any of the legal challenges to his loss in the 2020 presidential election.
“The Supreme Court, they rule against me so much,” Trump told the crowd at the Ellipse on Jan. 6, 2021. He also complained that the justices were too worried about their standing on the “social circuit.” “And the only way they get out is to rule against Trump. ‘So, let’s rule against Trump.’ And they do that. So, I want to congratulate them,” he said sarcastically.
As Trump was mounting his bid to return to the White House, he often groused about the justices. In 2022, when the court refused to step in to prevent his tax returns from being turned over to a House committee, he made his bitterness clear.
“Why would anybody be surprised that the Supreme Court has ruled against me, they always do!” he wrote on Truth Social. “The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body, with our Country paying the price. They refused to even look at the Election Hoax of 2020. Shame on them!”
At other times, Trump has been almost effusive about the court, particularly on the role the justices he appointed played in overturning the federal constitutional right to an abortion after nearly half a century.
“With the help of six very wise and brave Supreme Court Justices, I was successful in terminating Roe v. Wade – Something which few thought was possible to do!” Trump wrote. (Only five justices actually joined in the decision to end Roe. Roberts, an appointee of President George W. Bush, did not sign onto the majority opinion when the court took that momentous step in 2022.)
Of course, but for a couple of key wins at the high court last year, Trump wouldn’t be speaking to Congress or advancing any government agenda because he may never have returned to the presidency.
In March, the justices unanimously rejected a bid to knock Trump off the ballot in Colorado due to his role in fomenting the Capitol riot on Jan. 6, 2021. And in July, the high court split largely along ideological lines as it upended special counsel Jack Smith’s prosecutions of Trump by ruling that presidents enjoy broad criminal immunity for acts taken while in office. The justices’ ruling helped fuel Trump’s narrative that he was being unfairly persecuted by his enemies.
Trump’s conflicted view of the court and his tendency to harbor perpetual disappointment in the justices was at its clearest in 2023 as he addressed a National Rifle Association convention in Indianapolis.
“They don’t help me much. I’ve got to tell you that. They vote against me too much,” Trump said. “It’s one of those little things in life, right?….They are outstanding people and great scholars, brilliant. And they’ve done a very good job, I always say–-except for me.”
Todd Blanche took a major step toward confirmation as attorney general Tuesday after the Senate Judiciary Committee voted 12-10 on party lines to advance his nomination, likely setting up a final vote within days.
His nomination, at risk of being withdrawn just last week, now appears to be on a glide path toward approval. Blanche has been serving as acting attorney general since April, but President Donald Trump has been intent on installing his former personal lawyer permanently.
Judiciary Chair Chuck Grassley (R-Iowa) said ahead of the vote that Cornyn and Tillis’ concerns about the fund “and the IRS settlement were shared by many, including this senator.” He added that the changes Blanche made “put this issue to bed once and for all.”
Democrats lambasted the deal Cornyn and Tillis struck, saying it would not meaningfully bind Trump from eventually resurrecting the payout fund and using his to enrich his political allies, including participants in the Jan. 6, 2021, Capitol riot.
“To state the obvious, Mr. Blanche’s statement on the slush fund and the IRS immunity agreement are not signed by the parties to the settlement agreement and are therefore unenforceable,” said Sen. Dick Durbin of Illinois, the top Democrat on the panel. “The parties could still sue to enforce the agreement and the cop-beaters fund can easily be revived with a new order from the Department of Justice 15 minutes after Mr. Blanche is confirmed as attorney general.”
Sen. Cory Booker (D-N.J.) said he “loves the state of Texas” but said the deal Cornyn agreed to is “all hat and no cattle.”
Booker, who is a vegan, asked, “Where’s the beef?”
Outside of the committee, there are a few GOP senators who could pose a hurdle in confirming Blanche, including Sen. Lisa Murkowski of Alaska, Sen. Susan Collins of Maine, Sen. John Curtis of Utah and Sen. Bill Cassidy of Louisiana.
Murkowski called the written elimination of the payout fund a “pretty good step” Monday, while the others said they continue to evaluate Blanche’s nomination.
All four have yet to commit to voting for Blanche, and as long as all Democrats are unified in voting against him, he can only lose two Republican votes given the absence of Sen. Mitch McConnell (R-Ky.), who has not voted since June due to health reasons.
Senate Majority Leader John Thune said he wants to get Blanche confirmed before senators leave as soon as the end of this week for an extended recess.
A lawyer for Rep. Max Miller took responsibility Tuesday for inadvertently releasing sensitive photos of the Ohio Republican’s daughter in a trove of material Miller published Sunday in a bid to defend himself against domestic abuse claims.
The attorney, Aaron Minc, took responsibility for the photo being released and called it “completely unintentional and a mistake” after a lawyer for Miller’s ex-wife, Emily Moreno, accused Miller of disseminating the daughter’s name and one image that “could be considered Child Sexual Abuse Material.”
“I am solely responsible for what happened,” Minc said in a statement. “I was the only person responsible for assembling, creating, reviewing, adding, deleting, redacting, or making any changes to the information and files that were in this folder.”
Minc apologized to Miller, Moreno and their families but also decried Moreno for creating “a media spectacle regarding this unfortunate mistake … as a means to try to gain leverage in court and distract from the underlying evidence that exonerates Mr. Miller from the false allegations he is accused of.”
Miller posted the documents online Sunday after delivering a livestreamed defense against the claims leveled by his former wife, Emily Moreno. He has declined all allegations of wrongdoing, which include pouring hot water on his ex-wife, holding a gun to her head and breaking his daughter’s collarbone.
Moreno’s lawyer Subodh Chandra claimed that the documents left the daughter’s name unredacted and contained “private images,” including one where “the daughter’s genitals appear to be visible,” according to a letter to Minc obtained by Blue Light News. Chandra noted that the photo was later removed.
“The post with the link to the folder — published under your name — garnered over 204,000 views from the time it was posted until this afternoon,” Chandra wrote.
The letter from Chandra asks Minc, “Whose idea was it to share this intimate image of the child?” among other questions, giving a Wednesday close-of-business deadline.
The letter marks the latest escalation in the legal battle between Miller and Moreno, who is the daughter of Ohio Sen. Bernie Moreno. After Miller delivered his livestreamed defense Sunday, the GOP senator denounced his former son-in-law, saying he should not serve in the House and needs to seek professional help.
Miller is running for reelection in a competitive Cleveland-area seat. He has until Wednesday to withdraw from the ballot and allow for a crash primary to replace him.
Senate Republicans are facing a put up or shut up moment to move ahead with a party-line bill this week.
Those who want to advance a budget blueprint now will use Tuesday’s GOP closed-door lunch as a last-ditch effort to rally their colleagues behind what’s guaranteed to be a politically heavy lift. But prospects are waning with each passing hour, as lawmakers face a slew of other priorities, including plotting the path for a stopgap funding patch.
Senate Majority Leader John Thune said Monday it’s possible members stay through the weekend or return next week to knock out lingering tasks, delaying the start of a five-week recess.
“It looks to me at least like there’s a good possibility that it’ll take us more than Thursday or Friday to get through the things we have to get through,” he told reporters.
Budget Republicans are meeting separately Tuesday morning to talk about advancing a framework in the Senate, but Chair Ron Johnson declined to say Monday whether he would release a budget resolution this week — a necessary step for the chamber to make any movement forward.
Johnson said he’s “working with leadership,” who he acknowledges has been prioritizing government funding.
Meanwhile, Sen. John Kennedy told reporters Monday he didn’t expect any budget resolutions on the floor this week because “I don’t think my leadership wants to do it.”
“As I’ve said before, you got to have the votes to get on it,” Thune said Monday, while stopping short of nixing the possibility of a vote this week.
Thune also may need to deal with GOP hard-liners demanding votes on the SAVE America Act as frustration percolates over whether the budget measure’s election provisions comply with Senate rules for the reconciliation process.
Sen. Roger Marshall joined Sen. Mike Lee Monday in saying the chamber shouldn’t depart without passing the elections bill, and Marshall said he’d be willing to object to adjourning the chamber over it.
What else we’re watching:
— BLANCHE HAS MORE REPUBLICANS TO CONVINCE: Todd Blanche’s prospects for confirmation as attorney general were much improved Monday — but he’s not in the clear yet. The acting attorney general secured votes from the previously reluctant Sens. John Cornyn and Thom Tillis over the weekend, all but certainly giving him the votes he needs to advance out of Judiciary Tuesday morning. But he still needs to get through the full Senate, where he can only lose two Republican votes given likely unified opposition from Senate Democrats and Sen. Mitch McConnell’s absence.
— GOP SENATORS BREAK SILENCE ON MILLER: Multiple Senate Republicans are calling for Rep. Max Miller to step down from office amid domestic abuse allegations. The outcry comes after Sen. Bernie Moreno — father of Miller’s ex-wife, Emily Moreno — said in a statement Sunday Miller should not serve in the House. Miller has denied the allegations. The surge of support from Moreno’s colleagues marks the first significant crack in a wall of GOP silence regarding the claims. Miller has until Wednesday to withdraw from the ballot and allow a crash primary to select a replacement.
Jordain Carney, Chris Marquette, Riley Rogerson and Mia McCarthy contributed to this report.
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