The Trump docket

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

As the Supreme Court has begun its new term, which by law starts on the first Monday in October, there is the strong sense that this is going to be a term dominated by cases involving the actions of President Donald Trump. I have been teaching constitutional law, and thus have closely followed the Supreme Court, for over 45 years. But never have I had a sense at the beginning of a term that it will be so momentous in deciding the future of American democracy.

To be sure, cases involving Trump have been important on the court’s docket before.  In his first term as president, there were challenges to his policies, such as revoking the Deferred Action for Childhood Arrivals program and trying to change the census questionnaire to ask about citizenship. And there were important decisions about whether a grand jury or a congressional committee could subpoena the president’s financial records.

In 2024, in the major decision of Trump v. United States, the court held that the president has broad immunity from criminal prosecution for official acts taken in office. And last term, the court in Trump v. CASA ruled that federal courts cannot issue nationwide injunctions against presidential actions.

But the cases in prior terms about Trump’s actions seem just a prelude to this year. Trump is seeking to greatly expand executive power and has taken many actions that are being challenged as illegal or unconstitutional. There never before has been anything like this, and hundreds of lawsuits have been brought seeking to enjoin a myriad of Trump’s actions.

Almost two dozen of these challenges have already come to the Supreme Court on its emergency docket. In almost every instance, the court has stayed the lower courts’ preliminary injunctions stopping executive actions and ruled, 6-3, in favor of Trump. But now several of these matters will be before the court on its “merits” docket. Many other issues involving presidential power are likely to arrive by the end of the term. 

What are some of the matters already on the docket and likely to get there this year?

Removal power

In 1935, in Humphrey’s Executor v. United States, the Supreme Court unanimously upheld a federal law that prevented the president from firing commissioners of the Federal Trade Commission unless there was good cause for removal. Trump has been explicit that he believes Humphrey’s Executor was wrongly decided and he will not comply with federal statutes that restrict his ability to remove agency heads. His argument is that there is a “unitary executive,” which gives the president the power to fire anyone in the executive branch of government.

The unitary executive theory was developed in the early years of the Reagan administration. When Samuel Alito was nominated for the Supreme Court, one of the grounds for opposition was his role in developing this theory. When it was first considered by the Supreme Court in Morrison v. Olson, in 1988, the Supreme Court decisively, by a vote of 7-1, rejected the unitary executive theory in an opinion by Chief Justice William Rehnquist. The Court, with only Justice Antonin Scalia dissenting and embracing this theory, upheld the constitutionality of the Ethics in Government Act, which provided for the appointment of and limited the removal of an independent counsel to investigate alleged wrongdoing by the president or high-level executive officials.

Now it appears that a majority of the current court accepts the unitary executive theory.  Three times in recent months in cases on its emergency docket, the court – in Trump v. Wilcox, Trump v. Boyle, and Trump v. Slaughter – the six conservative justices (apparently) have issued stays of federal district court decisions preventingTrump from removing agency heads.  It has done so with little explanation and over forceful dissenting opinions by Justice Elena Kagan.

The court has granted review in one of these cases: Trump v. Slaughter, which involves the firing of a Federal Trade Commissioner. In that case, the Supreme Court has granted review on two questions: whether to overrule Humphrey’s Executor and “whether a federal court may prevent a person’s removal from public office.” The court has said that Trump v. Slaughter will be argued in December 2025.

The Court also has agreed to hear arguments in another case involving the president’s removal power, this time in the context of the Trump administration’s request for a stay, in January 2026. The question before the court in Trump v. Cook is whether the president has the power to fire Lisa Cook, a governor on the Federal Reserve Board. Governors on the Federal Reserve Board are appointed for a 14-year term and can be fired only “for cause.” Trump fired Cook, claiming that she had engaged in mortgage fraud – allegations that Cook has denied, calling them “flimsy” and “unproven.”

The federal district court issued a preliminary injunction barring Cook’s removal, and the United States Court of Appeals for the District of Columbia Circuit rejected the Trump administration’s request for a stay. The Trump administration then came to the Supreme Court, which on Oct. 1 agreed to hear arguments on the government’s stay request.

Interestingly, in Trump v. Wilcox – an emergency docket matter which involved the removal of a member of the National Labor Relations Board and also the head of the Merit Systems Protection Board – the court addressed the issue of presidential removal of governors of the Federal Reserve Board. Although the Federal Reserve Board was not at issue in Trump v. Wilcox, the short opinion went out of its way to distinguish it, perhaps to offer reassurance to the stock market that Trump could not carry out his frequent threats to fire Fed Chair Jerome Powell. Specifically, the court said that the “Federal Reserve Board is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” 

In Trump v. Cook, the court will address the legality of President Trump’s removal of Lisa Cook, perhaps focusing on whether there was cause for the firing or perhaps deciding whether it is constitutional for Congress to limit removal of governors of the Federal Reserve Board.   Perhaps as a sign of how it will be decided, the court has allowed the preliminary injunction against Cook’s removal to remain in place, whereas in the other removal cases the court allowed the firings while the cases were pending.

Tariffs

On Nov. 5, the justices will hear oral arguments in Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, regarding whether Trump had the legal authority to impose tariffs on goods from foreign countries. Specifically, the issue before the court is whether the International Emergency Economic Powers Act, which does not mention tariffs, nonetheless gives the president the power to impose them.

The cases involve the legality of Trump’s imposition of massive tariffs on countless imports. As I have written previously for SCOTUSblog, there are important issues in it about statutory interpretation, the major questions doctrine, and the authority of the president under Article II of the Constitution.

Birthright citizenship

The first sentence of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In 1898, in United States v. Wong Kim Ark, the Supreme Court held that this means that everyone born in the United States is an American citizen, with the very limited exceptions of babies “of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”

But on Jan. 20, Trump issued an executive order effectively saying that only the children of citizens or parents with green cards are U.S. citizens. Several federal district courts declared this unconstitutional and issued nationwide injunctions, which prohibited the federal government from enforcing the order anywhere in the United States. In Trump v. CASA, on June 27, 2025, the Supreme Court held that federal courts could not issue such nationwide injunctions. But the court did not address the constitutionality of the restrictions on birthright citizenship.

On Friday, Sept. 26, the solicitor general asked the Supreme Court to review two cases – arising out of the 1st and 9th Circuits – that declared the Trump executive order on birthright citizenship to be unconstitutional. Given the importance of the constitutional issue, I expect that the court will grant review and hear the cases.

Alien Enemy Act

The Trump administration has invoked the Alien Enemy Act of 1798 to deport non-citizens to a maximum-security prison in El Salvador. The Alien Enemy Act provides that in the event of a “predatory incursion” or “invasion,” the United States can deport males over the age of 14 who are from an enemy nation. Although this law previously had been used only in the War of 1812, World War I, and World War II, the Trump administration has invoked it to deport alleged members of a Venezuelan gang.

On April 19, at about 1:00 a.m., in A.A.R.P. v. Trump, the Supreme Court issued an order barring the government from removing “any member of the putative class of detainees from the United States until further order of this Court.” It was a 7–2 ruling, with Alito writing a dissent, joined by Justice Clarence Thomas. On May 16, the Court, again 7–2, came to the same conclusion and declared, the “Government is enjoined from removing the named plaintiffs or putative class members in this action under the AEA pending order by the Fifth Circuit and disposition of the petition for a writ of certiorari.”

The court remanded the case to the United States Court of Appeals for the 5th Circuit. On Sept. 2, the 5th Circuit, in a 2-1 decision, in W.M.M. v. Trump, held that the president lacked authority under the Alien Enemy Act to carry out these deportations. The issue seems very likely to return to the Supreme Court.

Conclusion

These are just the most likely matters to come to the court this year involving challenges to Trump’s actions. There are so many others involving presidential power – such as the authority to eliminate federal agencies, the power to refuse to spend federal funds appropriated by Congress, the racial profiling by ICE agents – that seem destined to come before the court in the next term or two.

The profound question for this term, and I believe for the future of our constitutional democracy, is whether the court will serve as a check on Trump.