LEILA FADEL, HOST:
Who has the right to sue the president? That's a question that's being raised by a number of recent rulings by the Supreme Court. It's allowing construction of President Trump's ballroom at the White House to continue, saying that an architectural historian's objections weren't enough to allow a lawsuit to go ahead. The court has also recently declined to block the administration's plan to restrict mail-in ballots. Stephen Vladeck has been watching all this. He's a constitutional law expert and a professor at Georgetown Law. Professor, good morning and welcome back to the program.
STEPHEN VLADECK: Good morning, Leila. Thanks for having me back.
FADEL: What do these two cases tell us about who can prevail in a lawsuit that tries to check executive power?
VLADECK: I think they tell us a couple of things, and they're going in somewhat different directions.
FADEL: OK.
VLADECK: So in the mail-in ballots case, the Supreme Court's first ruling a couple weeks ago was that the blue states challenging President Trump's executive order didn't have standing, like they weren't the right parties to bring the lawsuit, mostly because they sued too soon. They sued before the USPS had issued its final rule. That's now happened. And so in that case, the procedural problem was temporary. In the ballroom case, what the Supreme Court held last week was that the National Trust for Historic Preservation just doesn't have standing at all. That's a permanent ruling that's going to make it very hard for anyone to challenge how President Trump does or doesn't reconstruct the White House.
FADEL: And so as a constitutional law expert, when you're watching this, what is your biggest concern about the future, given these rulings?
VLADECK: So I think the problem, Leila, is that the Supreme Court's hostility to standing in these kinds of cases, first, has been a bit inconsistent historically. The justices have a remarkable tendency to stretch standing rules to allow lawsuits, for example, the challenge to President Biden's student loan debt forgiveness program. Second is, I think all of the doctrine presupposes that there are other checks, that the courts are not the only mechanism for enforcing the separation of powers - principally, that Congress would actually do more to stand up for its own authority over appropriations and other topics. And I think, Leila, what we're seeing is that piece of it has totally broken down.
FADEL: And so people are going to the Supreme Court because Congress is not doing its job?
VLADECK: A hundred percent. I think the hard question is, should the Supreme Court adjust its standing doctrine to account for the political reality that we live in? And I think we're seeing increasingly the costs of the court's refusal to do so.
FADEL: But should it? I mean, should it be stepping in where Congress should be the ones saying, actually, this money is not appropriated for that?
VLADECK: I think this is a really big and good question. And I think the short answer is there are good arguments on both sides. The problem, again, is that the court itself has been inconsistent about standing. If we could point to 40, 50 years of consistent, rigid enforcement of the same objective principles, we could say, you know, now's not the time for the court to turn its back on those principles. But the court's standing on jurisprudence has been a muddle for decades. I think that's the problem of the current moment, which is a court that seems to be acting inconsistently in a way that has the remarkable tendency to enable what may very well be unlawful behavior by President Trump.
FADEL: This is a court that is majority conservative justices. Are you saying that they're acting in a partisan way when you call it inconsistent?
VLADECK: So I think the problem is that whether it's partisan or not is very much an assessment of their motives. It certainly appears that the justices tend to be stricter about enforcing these kinds of procedural requirements like standing when they're being invoked against Republican presidents than when they're being invoked against Democratic presidents. I think that's what gives rise at least to the appearance that the justices are playing partisan political favorites.
FADEL: Are there other big cases coming down the pipe where you're looking when it comes to the issue of standing?
VLADECK: Sure. I mean, I think there are already a couple working their way through the courts about other funding claims. But I think the real question is going to be whether, if Democrats retake either chamber of Congress come January 2027, we're going to see the chambers themselves start trying to bring these lawsuits, where the standing arguments the Supreme Court has relied on to this point probably wouldn't apply. Those cases would be hard to duck. And that could be one of the really important consequences if there's a shift in power in Washington come next January.
FADEL: That's Stephen Vladeck. He's a professor at Georgetown Law and an expert on the Supreme Court. Thank you so much for your time.
VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.
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